Toronto Employment Lawyer

Worker fired for not admitting blame

"To err is human; to forgive, divine."
- Alexander Pope

"Doh"
- Homer Simpson

A serious error doesn't necessarily justify discipline. but refusing to accept blame can cost you your job.

This notion stems from the 2007 decision in McGachie v. Victoria Immigrant and Refugee Centre. In this case we learn about Martha McGachie. Her employment was characterized by a series of errors and when the mistakes mounted, she finally  wore out her welcome at the Victoria, B.C., Immigrant & Refugee Centre.

The final straw for the employer occurred when McGachie, a counselor of the centre for nearly five years, sent a document to the government agency funding its operations without first seeking approval from her supervisor. This was contrary to the centre's standard policy. When the government agency reviewed the document, it realized the centre was providing services to some clients who were ineligible for funding. The agency thus clarified its policy and the centre was left unable to service a number of clients.

McGachie was then asked by her supervisor and the centre's director to acknowledge her mistake in writing. She responded in writing, but instead of admitting the error, she characterized their request as a "new term of employment tantamount to a probationary period". McGachie was fired shortly after and responded by suing for wrongful dismissal.

The court found that McGachie's dismissal was justified on the basis of her refusal to acknowledge the blame for the incident. Her error did warrant some form of discipline and the requirement to acknowledge the mistake was a reasonable request. On this basis, the court found that McGachie's refusal to accept blame was deemed insubordination and was ultimately, what lost her her case.

Valuable insight for both employers and employees into the law of wrongful dismissal can be derived from Martha McGachie's case:

• It is not open to an employee to simply refuse to obey a direction from a superior. The decisive questions is, however, whether or not the request was reasonable.

• A single mistake or even a series of consequential mistakes may not always convince the judge that the employee's dismissal for cause is a necessary or proportional response.

• Employee misconduct is not considered in isolation.

In McGachie's case, the court agreed that by directing her to acknowledge her mistake in writing, the employer had acted sensibly. Furthermore, the results of this case were undoubtedly, influenced by McGachie's employment history and the earlier mistakes she made.

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

Workplace harassment is a common employment law case

Here are five most frequent files appearing on my desk and in court dockets

1. Workplace Harassment
Following Canada's first million dollar workplace harassment award, I can expect to see more of these claims walk through my door. That being said, most harassment claims are not credible as employees' perceptions of their treatment are not dispositive of  the issue. The test is whether an employee can demonstrate continued employment was objectively intolerable, which must be in the eyes of the trial judge, not just those of the litigants.

2. Unjust performance appraisals
Employees often declare a critical review is either a form of harassment or management's concoction to force their resignation. For an unwarranted review to amount to a wrongful dismissal, an employer must have acted in bad faith and prevented the employee's improvement.

Justice Randall Echlin, in his decision for Ata-Ayi v. Pepsi Bottling Group, noted negative reviews, per se, do not lead to dismissal. He wrote;

It is essential to any healthy and constructive employment relationship that the employer be able to discuss in an open and candid fashion with its employees, so long as such discussion is proffered in good faith.  Sugar coating or minimizing legitimate concerns inhibits performance improvement and is work performance  not conducive to a healthy and vital working relationship.

3. Calculating severance pay
Courts do not follow any defined rules in calculating how much severance to pay an employee and neither does an ex-employer. At trial, a judge's task is to consider the circumstances however, four factors do prevail: tenure, age, re-employability, and type of job.

4. Employment contracts
Anything can be written into an employment contract, but not all promises can be enforced. In breaking a contract, most argue the contract provides less than the minimal employment standards, is vague, or the employee was denied the time or opportunity to have the contract reviewed, among other criteria. I elaborated on this premise in my recent column Employment Contracts Can Be Broken.

5. Off duty behavior
Employees who believe their conduct away from the office is immune from discipline are mistaken. Thanks to social networking websites such as Facebook, employers have the technological means- and occasionally the inclination- to monitor behavior away from the job.

Click here for the full article: Workplace harassment is a common employment law case

Off Duty Conduct Can Affect the Health of Your Career

Daniel A. Lublin, Toronto Metro News
Published June 6, 2007

Employees who believe that their conduct away from the office is immune from discipline are mistaken.  Employers have the technological means and occasionally the inclination to monitor behaviour that occurs away from the job. And where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.

Read the entire article Off Duty Actions Can Affect Your Job

• Criminal behaviour unrelated to the workplace but which nonetheless injures an employers interests can amount to cause for dismissal.
• Off-duty conduct that casts doubt on your honesty or the ability to perform your job can be cause for dismissal.
• When the public’s safety is in issue, your personal business becomes your employer’s problem.
• Where off-duty conduct creates a serious conflict of interest with the work of the organization, employees may successfully be fired for cause.

Despite these examples, proving just cause often remains a daunting task for employers. Both they, and their employees, should gauge the following rules.

1. Proof of misconduct may not be present, but it seldom matters if it is conduct that is, or is likely to be, ruinous to the interests or reputation of the employer.
2. Proving just cause for dismissal is more likely to be successful if there are negative public consequences or unfavourable publicity brought on as a result of off-duty conduct.
3. Off-duty behaviour that renders other employees unwilling to work with the perpetrator can be grounds for immediate dismissal.

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

Think Twice Before Taking Clients With You

A Business' greatest assets are its clients.  But those clients have legs.  And when they walk, the business follows. 

Daniel A. Lublin, Metro Toronto News -
Published Wednesday, May 23, 2007

Nothing infuriates a company more than news of an ex-employee soliciting away its most prized assets: the clients.  But clients, much like those employees, are not sedentary.  Seldom are they attracted to one company or another exclusively by virtue of the services they are offered.  Rather, their affiliation lies with the relationships that are build and the key employees who have built them.

Courts recognize that business relationships follow the employees who possess them and permit employers to protect their most valuable assets through contractual and equitable limits.  In today's employment contract, it is commonplace to find any combination of non-solicitation, non-competition and confidentiality clauses restricting your ability to work for the competition or solicit your book of business on the way out the door.

But not all post-employment behaviour amounts to infidelity.  In my Metro News article "Changing Jobs Require More than Giving Two Weeks' Notice" you can read the five legal points to remember, to keep you both in business and out of the courtroom

Daniel A. Lublin

Reinstatement Isn't an Option for Employees

Canadian Employment Law provides a buffet of remedies for the dismissed employee.  However as two ontario litigants recently learned, reinstatement isn't currently offerred on the menu.  See the full version of my article below.   

-- Reinstatement isn’t an option for Canadian employees

Canadian employment law provides a buffet of remedies for an aggrieved employee to pick and choose from. As Mr. and Ms. Anil and Neerja Sharma learned, however, reinstatement isn’t currently offered on the menu.

Anil and Neerja Sharma were fighting for their jobs and for their reputations. The couple had found their dream jobs as sales agents for Quadrus Investment Services, a subsidiary of London Life Insurance. Unfortunately for the Sharmas, their dreams came to an abrupt end when, under the cloud of a fraud investigation, they were suspended and then fired. The couple sued for wrongful dismissal, and before a trial could be held, they brought a preliminary motion, asking the court to reinstate them to their jobs and to force Quadrus and London Life to issue a notice to the industry and their clients, stating that they hadn’t done anything wrong.

At the hearing of the motion, it wasn’t clear whether the Sharmas were at fault. But it didn’t matter.  Reinstatement and compelling a declaration from their ex-employer weren’t remedies available to them, even had they ultimately been successful at trial.

Much to the chagrin of many non-unionized ex-employees, reinstatement to their old job is a remedy not often sought and less frequently granted:

-- Employees can seldom persuade a court to forcibly reunite them with their ex-employer. To succeed, damages must be an inadequate remedy and supervising the parties must be both possible and preferable – an unlikely occurrence. Thus, in my own practice, I often counsel these employees to spend their time, and resources, seeking compensation if wronged.

But reinstatement is a desirable, and attainable, remedy in alternative legal forums:

-- Where allegations of discrimination are manifest, I’ll pursue a claim under provincial or federal human rights legislation. If the claim is meritorious, a human rights tribunal can order reinstatement.  Often, the prospect of having to welcome back a terminated employee is so daunting that employers are quick to empty their pockets in exchange for a withdrawal of the claim.

-- Unionized employees receive the benefit of the right to reinstatement, negotiated directly into their collective agreements. Grievance arbitrators can, therefore, order an employee back to the workplace, even years after the break-up.

-- Non-managerial employees working for a federally regulated employer, such as a bank, or airline, can pursue an unjust dismissal complaint under the Canada Labour Code, which permits an arbitrator to award, among other remedies, reinstatement. While most of my federally regulated clients are not desirous of reinstatement, it is the potential of returning where unwanted that can influence the settlement position of an otherwise inflexible ex-employer.

-- Employers who run afoul of the pregnancy and parental leave protections offered to employees under the Employment Standards Act face having an employment standards officer investigate their practices and then issue an order requiring the reinstatement of a terminated employee.

Non-unionized employees do have a modicum of hope. When the Human Rights Code is amended shortly, it appears that judges will have the power to order reinstatement, force an employer to write a letter of reference and even make employers post letters of apology in the workplace or the media. The potential for such incalculable awards, along with damages for wrongful dismissal, ups the ante of litigation, and thus, the gamble of having a case heard at trial. Employers will be ever more willing to empty their pockets in exchange for the assurance that their name won’t end up in the morning news.

Daniel A. Lublin is a Toronto employment lawyer.  He can be reached at dan@toronto-employmentlawyer.com or www.toronto-employmentlawyer.com.

Daniel Lublin featured in Canadian Employment Law Today

Most employees believe that their employment contracts can seldom be varied without their consent.  However, as an Ontario judge recently confirmed, the tables are turned when advance warning is provided.

This month, my article on an employer's ability to change your job was published in Canadian Employment Law Today, which is a leading publication for employers and human resources managers.  Excerpts from the article can be found here.  I'll be publishing additional articles for Canadian Employment Law Today and will post them as they become available. 

Initially my article was published in my weekly column in the Metro News, which is distributed throughout the Greater Toronto Area. The article first appeared on March 7, 2007 and can be read here.  Links to all of my recent Metro News articles can also be found here.  

If you would like to read the case, the Ontario Superior Court of Justice's decision, in Wronko v. Western Inventory Service Ltd, can be read here.