A true resignation is a voluntary action.  Plain and simple.

Although there may be an intention to leave, courts will not construe that intention as a “resignation” unless it is acted upon and is unmistakable.

Another recent example is found in an Ontario case called Carmichael and Mantis Racing Inc, which can be read in full here.

Stan Carmichael and Ernie Jakubowski were friends with a common interest – both were Porsche aficionados. When Carmichael found himself without work, Jakubowski, the owner of Mantis Racing Inc., a high-end automotive shop involved in racing events throughout North-America, saw the potential to grow his business.

Over beers and a handshake, the two friends agreed that Carmichael would become Mantis’ new general manager.  However, their relationship would soon sour, resulting in a lawsuit for wrongful dismissal and an allegation that Carmichael resigned.

Carmichael won the case.  The Judge was not impressed with Mantis, its lawyer, or its defence.

Often, employees find themselves in the “twilight zone,” somewhere between wanting to leave and having been fired.  For employees that want to avoid being characterized as resigning, they should follow these guidelines:

• Resist taking any steps that can be construed as voluntarily withdrawing from the workplace, as difficult as that may be.
• Immediately protest a characterization that there has been a resignation, if it wasn’t the intended result.
• If unclear, request that your options be outlined in writing and seek specialized advice before taking any action.

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

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.

An individual’s experience, related below, provides an example of why you should be careful when you call the Ministry of Labour. 

Following her termination, an individual contacted the Ontario Ministry of Labour, seeking advice about her situation. She had not yet contacted a lawyer and the ministry representative who was randomly assigned to pick up the phone did not immediately encourage her to do so. 

The two spoke at length about her matter. The individual explained that she had not been paid termination or severance pay, at which point she was encouraged to make a statutory complaint. This was the first error. The ministry enforces the provincial legislation only, but it does not provide a remedy for common law damages such as wrongful dismissal, which in this case actually made up the bulk of this person’s claim. 

Without training in employment law, neither the ministry representative nor the individual realized their mistake. As a long-term employee, this person was entitled to considerably more than what the Ontario Employment Standards Act could offer. As well, since the legislation caps damages at $10,000, which courts do not, the individual had an upper limit to her claim. 

Although the ministry could easily address and then remedy her complaint, this was not the problem. It was that once it has taken steps to do so, an individual loses the right to file a wrongful dismissal claim. Here, since this person’s damages were in excess of the statutory minimum, the bulk of her damages then would be relinquished – an issue that most employment lawyers would spot as a matter of course.   

The ministry has safeguards, but they are not always effective. No surprise there. After most complaints are made, the ministry mails the claimant a standard form letter explaining that if the complaint is not withdrawn within two weeks, the claimant will not be able to file a wrongful dismissal claim. However, since most people will believe, even if incorrectly, that they received “advice” from the ministry, they are unlikely to withdraw their complaint or later pay for a lawyer’s time to obtain a second opinion. The result is that they are then stuck with their original claim. 

This example is not an exception. The ministry’s hotline, which fields calls from prospective complaints, should explain only what the Act says and how it may have been interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when some of the Ministry’s representatives habitually blur this distinction.  When they do, the public’s interests may be subverted.

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

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