Sometimes employees too easily confuse who gets to call the legal shots.  Believing that their job is an entitlement, some workers try to take the law into their own hands. They are often mistaken. This is the tale of one employee who learned this lesson the hard way.

Working out of the Toronto-area offices of software developer VoiceGenie Technologies, Crinu Iliescu quickly wore out his welcome. Hired only 15 months earlier as a software QA manager, Iliescu swiftly lost the firm’s trust after his response to a manager’s email accusing him of underperformance. Iliescu wrote his boss, the HR manager and the president with five demands he required them to meet before he would return to work.

In Daniel Lublin’s weekly Metro Column, he discusses the case of Crinu Iliescu, who was viewed as “abandoning” his job after refusing to meet his employer’s requirements to improve his performance.   The full column can be read here and the case can be read here.

The case stands for the proposition that, while employees do retain certain rights, rejecting a reasonable performance improvement plan is usually a poor option. 

Even if such a plan is imposed in bad faith (which often does occur), protest the plan in writing and continue to work in the meantime. You retain the right to complain at a later time without jeopardizing your own continued employment.

Daniel A. Lublin is a partner at the employment law firm Whitten & Lublin LLP, who specializes in the law of dismissal.

Work responsibilities can change on a dime.

Here is the cautionary tale of two employees who incorrectly assumed their employers had no right to change the terms of their jobs.

Experiencing an enrolment crisis, Acadia University decided it had no other choice but to remove oversight of enrolment and admissions from Paula Cook Mackinnon’s job.

Mackinnon, who had been employed by the university in a senior role for 19 years, disagreed. Believing that the university could not remove an important aspect of her job without advance notice or consultation with her, Mackinnon penned a letter to the president stating that she viewed the changes as significant and tantamount to a demotion.  She gave the university a few days to consider her concerns and provide a response.

When the university did not respond to Mackinnon’s letter before her deadline, she shut off her BlackBerry, cleaned out her personal items from her office and swiftly left the premises, never to return.

The law of constructive dismissal provides that an employee can treat fundamental changes to her job as effectively amounting to a termination.  And in Canadian workplace law, when you are terminated without a good reason, you are entitled to severance.

Justice Gregory Warner, who wrote the recent decision, correctly noted that the issue was not whether Mackinnon had “quit” her job, but whether she had a good enough reason to leave.

However, it could not be said that Mackinnon’s job was substantially different following the changes, as enrolment amounted to less than one quarter of her job. The university was entitled to reasonable leeway with changing business needs.

Similarly, in another recent case, Bank of Nova Scotia executive David Chapman resigned, claiming a reduction in his salary and the bank’s failure to honour a promise amounted to his termination. Although Chapman’s salary was reduced by 13 per cent, it was only the variable component of his pay, such as stock options, shares and bonuses that changed, not his base salary. Agreeing with the bank and dismissing Chapman’s case, the court found that Chapman’s pay could be reduced because he was always part of a variable compensation model and had remained in the applicable range for his position.

Why should employees and employers care about these cases?

Employers often assume incorrectly that they can change an employee’s job as they see fit.  Just as often, employees wrongly assume that their jobs cannot be changed without their consent. As similar facts don’t always lead to the same results, especially in workplace law, my advice is to consider a mutual resolution instead of always marching to the courtroom’s doors.
– Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

Last February U.S. Judge Robert Somma was arrested and charged with driving while intoxicated. Clad in a women’s dress, stockings, and pumps, his arrest led to much media scrutiny. Two days after pleading no contest to the charges, Mr. Somma tendered his resignation to the court system, giving them 2 weeks notice.

Once his 2 week notice period was nearing it’s end, Mr. Somma started the wheels in motion to rescind his resignation.  His attempt to be reinstated was accompanied by over 200 lawyers who sent letters in support of Somma.  His notice period was extended another month, however, his quest for reinstatement ended on May 30th with the court issued press release stating that Somma is "leaving to pursue other endeavors".

Rescinding a resignation is possible in certain circumstances. In my September 2007 article, True resignation is voluntary, I noted that employees are sometimes free to withdraw a resignation and continue as before.  This would be subject to whether or not the employer had ‘accepted’ the resignation by its actions or conduct.  See the case of Andrew Kieran for more.   

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

"We only part to meet again"
- John Gay

Seldom do employers bother to sue their ex-employees. But the tables are turned when a hasty resignation proves costly.

Few have heard of a lawsuit for wrongful resignation. Once thought to be a remote claim, there are cases that have found their way to the courts in recent years and awakened the prospects of companies looking to recover damages caused by an employee who departs without giving a warning or even a goodbye.

Here are three different cases where an employee’s impetuous departure lead to a decision of wrongful resignation;

1. Offering his services for only a few months, Gary Bradley resigned from Carleton Electric leaving the former employer with substantial economic loses. After his resignation, Bradley surprised his former employer by suing for unpaid wages. Instead of defending the merits of Bradley’s lawsuit alone, it responded by suing him for wrongful resignation-and won. Bradley’s failure to provide appropriate notice of his resignation proved costly; he was ordered to pay Carleton Electric $10,000.

2. When the general manager and two salesmen of Sure-Grip Fasteners left, without notice, and opened a competing business a few kilometers away, Sure-Grip was left without a sales staff in Southern Ontario. To add insult to injury, the former employees started to solicit orders from former customers. After the trial was heard, Sure-Grip had the last laugh when it was awarded $75,000 from the group of ex-employees for their failure to give reasonable notice of their resignations.

3. A group of RBC Dominion Securities employees left en masse to join a competing firm, incensing their ex-employer. After the trial was heard, the judge decided the ex-employees were liable to pay damages for resigning without adequate notice.

Few employers bother to sue ex-employees for not providing enough notice of their resignation. As these examples demonstrate, these lawsuits typically arise in the context of defending a claim for wrongful dismissal. The consequences of a successful suit against an ex-employee can be severe.

So if you are thinking about resigning, here are four legal principles to keep your career on track and your case out of court;

1. The proper measure to calculate an employee’s duty to give notice is based on the amount of time it would reasonably require the employer to find a replacement.

2. If you posses specialized skills or are contemplating leaving the employer in a vulnerable situation, your duty to give advanced notice is heightened.

3. In assessing your obligation, consider the labour market and your employer’s ability to replace you.

4. You may have a contractual duty to give advanced notice. Have counsel review your employment agreement(s) to determine whether any specific period of notice was agreed to and whether it must be followed.

It’s good practice to err on the side of caution. by doing so, you can avoid an irate ex-employer making you the next example of a wrongful resignation.

Click here for the original article from Metro News

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com