Employees often get what they deserve.

When they work hard, they get a bonus. When their service is long and meritorious, they may get a good severance package or pension. When they knowingly break their employer’s rules, however, they often are fired for cause and get nothing at all.

Canadian courts have little tolerance for employees whose computer habits expose their companies to liabilities. This is because in every province there is legislation that is interpreted as requiring employers to provide a harassment-free workplace. As well, given the potential risks to employers, it is clear that they can monitor an employee’s use of computers, BlackBerrys or any other equipment that uses its servers – and they often can do so without notice.

There is a tale of two employees who misused their computers at work and the consequences they reluctantly faced.  To read the full article, visit Daniel Lublin’s weekly column page at Metro News.

Some people view tough bossess as an invitation to a lawsuit.  But this is not always so. 

Today, much of the workforce views a manager’s criticism as “bullying” or “harassment.” As toxic bosses have become a greater liability, their employees no longer call their doctors seeking a note for a leave of absence. Now they call their lawyers. But as harassment is often in the eye of the beholder, when will a tough boss justify a successful lawsuit? 

The entire workplace law column, originally published in the Metro News, can be read here.

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP. Reach him at dan@toronto-employmentlawyer.com

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

On January 1, 2010, the Ontario civil justice system underwent a major overhaul.

Some of the major changes include:

a. Raising the Limits on General Damages – The limit for a claim in the Small Claims Court will be raised from $10,000 to $25,000.  

b. Raising the Simplified Procedure Limit on Damages – Currently, the limit to have claims tried under the Rules of Simplified Procedure is $50,000. This limit will be increased to $100,000.

c. Limiting Examinations to One Day –

d. Litigation Management - The parties involved will have a greater responsibility for moving the matter forward in a timely fashion. The new rule however, will not apply to claims made in Toronto, Ottawa, and Windsor.  

e. Greater Proportionality in Fees – The new changes will encourage judges to award costs for legal fees on a basis relative to the claim. 

f. Modified Cost Rules for Summary Judgments – Judges will have greater discretion when awarding costs stemming from the same type of motion which will rely more on the appropriateness for summary judgment instead of the outcome.

A useful article in the Law Times, examines the issue and concludes that since the Province doesn't plan on spending more money in the small claims system, the delays will become increasingly prohibitive. 

In redesigning the rules, the government may have simply traded one set of problems for another. Ironically, many of the new rules may actually end up costing litigants more money and taking their cases longer to resolve. Here are some of those problems for workplace legal disputes: http://www.metronews.ca/toronto/comment/article/332966–new-rules-may-not-be-as-employee-friendly-as-planned

An e-copy of the new rules is available on the Government website e-laws. 

Daniel A. Lublin is an employment lawyer with the law firm Whitten & Lublin LLP, focusing on the law of dismissal.  Daniel can be reached at dan@toronto-employmentlawyer.com.  

Kelly McDougald, the ex CEO of the Ontario Lottery and Gaming Corp has reportedly settled her wrongful dismissal case against the Ontario Government for approximately $750,000.00, according to a Toronto Star article on Saturday. 

The deal is being criticized by opposition parties first, because the details were released over the holidays in an effort to downplay the payout and second, because it's approximately $400,000 more than what the Star reported McDougald would have taken in a settlement when she was first fired.

McDougald was fired during the OLG expense scandal earlier this year and argued that she was made a scapegoat by the Ontario Government.  The Government alleged it had "cause" for McDougald's termination, which if correct, would mean that she wouldn't be entitled to any severance pay at all.

Cause for dismissal is typically very difficult for an employer to demonstrate.  It must show that the conduct it complains of can actually be proven and that a lesser of form of punishment was not appropriate or available. 

It appears that McDougald may have had a severance clause in her contract which would have required the Government to pay her a year's salary if dismissed without cause.  Therefore, the additional damages (almost $400,000) could be made up from her claims that the OLG's treatment and publicity following her termination would effectively prevent her from obtaining other work quickly or at all.

Daniel Lublin is an employment lawyer at the law firm Whitten & Lublin LLP, which focusses on the law of dismissal.  Daniel can be reached at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com. 

There is no right to refuse reasonable directions from a manager. 

However, when those directions amount to a "new job" altogether, the employee may be able to claim constructive dismissal.  This question was put to an Ontario judge in the recent case of Gary Gordon v. Tubs Ultimate Bath Store. 

Employees cannot always be forced to take on additional duties. If those new responsibilities can be viewed as a creating a new position, the employee may be able to reject them and insist on compliance with their original job. That decision, however, must be reasonable.

In this case, the judge ruled that Gordon's decision to refuse directions from his boss was unreasonable and did not amount to a constructive dismissal because those directions were part and parcel of his usual working conditions. 

To read the full synopsis of this case visit my Metro News Columnists' page here.

Daniel A. Lublin is an employment lawyer focussing on the law of dismissal.  He can be reached at Dan@toronto-employmentlawyer.com or through www.canadaemploymentlawyer.com

The story of Jordan Wimmer, which we initially reported last week, continues.  In Today's Toronto Star story, Millionaire hedge fund boss, Mark Lowe, responds to Wimmer's allegations as "gross distortions" and "hugely offensive."

But under examination by Wimmer's lawyer, Lowe was forced to explain a series of "joke" emails that he forwarded around the office to employees, including Wimmer.

One email, entitled "Who is your real friend?" read: "Put your dog and your girlfriend in the boot (trunk) of your car for an hour and then see who is happy to see you."

Lowe admitted to the tribunal he had openly called Wimmer a "dumb blond" and referred to her as "decorative."

But he insisted: "It was said entirely as a joke. It was never intended as an insult."

In Canada, employees would make a complaint to a human rights tribunal or a claim of constructive dismissal through the courts. 

Damages for cases such as this would be assessed based on how long it would or should have taken Wimmer to find reasonably comparable work and whether she suffered any compensable mental distress. 

The Supreme Court of Canada recently rules on mental distress cases in the workplace in the Keays case, finding that the amount of damages should be consistent with an employees actual losses.  An example would be where the employee has taken longer to find other work that she normally would have.

Daniel A. Lublin is a partner with the employment law firm Whitten & Lublin LLP, which provides employees and employers with human resources advise and wrongful dismissal advocacy. Reach Daniel at dan@toronto-employmentlawyer.com

A canadian woman working as a top executive at a London, England company is suing her boss for 8 million dollars in a UK Employment Tribunal for allegations that he brought prostitutes to meetings and repeatedly called her a "stupid blonde" before she was fired, as reported in a National Post article here. 

In Canada it is an implied term in every employment relationship that employees be treated with decency and civility, the breach of which can lead to damages for termination, commonly known as a "constructive dismissal."  An example of a constructive dismissal case can be read here.   

In addition, Canadian legislation prohibits discrimination or harassment based on grounds such as gender or race.  

Daniel Lublin is a lawyer with Whitten & Lublin which is an employment law firm in Toronto, Ontario assisting employees and employers with workplace legal matters.  

In an article published in today's National Post, it was reported that the Toronto Star has asked 100 union and non union employees to consider voluntary severance packages as the newspaper explores contracting out what could amount to more than 100 jobs.  

Voluntary severance packages are essentially an agreement that the employee will agree to his or her termination "without cause" in exchange for an offer of severance, which has usually been made to the employee in advance.  Employees who are interested in the voluntary packages will usually then "apply" for acceptance for the package and if eligible (with eligibility set by the employer) the employee will be made a formal offer of severance. 

The difference between voluntary and non voluntary severance packages are that the employees who are offered voluntary packages are not required to accept the offer.  That is, they can reject the offer and continue to work as before.

In the current economy many employers have turned to cost cutting measures such as voluntary severance, temporary layoffs, reduced work weeks or hours, temporary pay cuts or large scale restructuring. 

Daniel A. Lublin is a partner with Whitten & Lublin LLP, which provides employees and employers with human resources advocacy and representation. 

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.