 |
Employment Law Articles: 2009
2008: a tough year for employees
Most people believe that court decisions are too pro-employee. This is untrue. Despite employee-friendly workplace laws, Canadian employers sometimes get to call all the legal shots. Both employees, and their lawyers, should pause given some of the recent decisions of our courts.... [read more]
A recipe for the recently dismissed: 4 sure-fire ways to receive appropriate severance
With unemployment rates at a generational high, many employees are asking "how do you win an employment law case?" Here are four tips for the recently departed. If nothing else, following my advice ought to ensure an appropriate severance package, if not more.... [read more]
Beware of employment contracts
It’s possibly the worst fraud in workplace law – corporations, with expensive lawyers and deeper pockets, insisting that employees sign one-sided contracts that reduce their legal rights. And employees, without bargaining power or an understanding of the law, not realizing their interests have been undermined.... [read more]
Class action lawsuits on the rise
It’s workplace law’s newest, and biggest, phenomenon: lawyers specializing in class action lawsuits, joining together groups of employees with similar legal claims.... [read more]
Commit business agreements to writing
If you want to ensure that a contract will be enforced later on, commit the terms to writing and give each side an opportunity to review that language before finalizing the deal. ... [read more]
Court’s judgment a sign of the times
Employers cannot adapt to new economic constraints at the expense of fundamental employee rights.... [read more]
Criticising your boss can be perilous to your job.
Overtly criticising your boss can be perilous to your job. While criticism may be reasonably justified or even provoked, employees won’t find favour from the courts where the tone or manner of the criticism becomes disrespectful or otherwise incompatible with continued employment. ... [read more]
Employee privacy rights
What happens when employee privacy rights collide with an employer’s right to monitor its workplace? Courts are frequently asked to rule on the delicate balance between an employee’s right to privacy and an employer’s right to manage the workplace. While employers do retain the right to monitor their employees, that exercise must only be performed in good faith and where there is a reasonable belief that an offence is being committed. Otherwise, employers may find themselves on the wrong side of another lawsuit.... [read more]
Employees always have basic rights
Not all companies have turned to mass layoffs in order to weather the current economic storm. There are other devices: many have turned to temporary layoffs, hiring freezes and slashing salaries in order to reduce overhead and maintain the bottom line. But while employees have no legal entitlement to continued employment, they do retain some basic rights.... [read more]
Employees should respond to discipline at work
Canadian employers seeking to discipline and then dismiss a habitual underperformer have limited options at their disposal: pay severance, and get it over with, or progressively build a case for cause. But with the current legal landscape tilted in favour of employees, discipline is no panacea for misconduct.... [read more]
Employment contracts
On Krzysztof Rejdak's first day of work, he found himself in a pickle. He was given an employment contract with a three-month probationary term and asked to sign his name. For Rejdak, who had already resigned from his previous long-term job, his options were grim: he could either sign his name and agree to be a probationary employee or he could refuse and potentially be unemployed. Fortunately for Rejdak, he later learned in court that not all signed agreements will ultimately be enforced. ... [read more]
Employment contracts are negotiable
Employees routinely sign contracts replete with unfavourable terms: contracts can give employers the right to eliminate employees with minimum notice, banish them to far away jurisdictions, slash salaries or demote – with impunity, prevent competition following their departure, and break promises or representations at their pleasure. ... [read more]
Employment Law Basics
Employment Law Basics: This is as true in law as it is in life. Here is a sampling of some of the questions I received this week and the cautionary advice I provided to those employees.... [read more]
How to calculate severance pay
With 71,000 Canadian jobs having vanished in the month of November alone, tales of mass restructuring have moved from this column’s coverage to the front pages of the news. The question I’m most frequently asked now is, what should employees expect if they lose their job and what can they do to protect themselves. Here are the rules of severance.... [read more]
Human rights claims no longer garden variety
Canadian employers have historically taken an ignorant view of human rights tribunals and their often remarkable decisions. But that may be about to change. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as employment standards and human rights laws, in a broad and inclusive manner, employers should not be so unconcerned.... [read more]
Job Abandonment
As is often the case, employers use an employee’s departure as an opportunity to relieve themselves of that worker’s services. But not so fast: Where an employee expresses or implies a desire to return to work, she won’t be viewed as having resigned.... [read more]
Job posting was unreasonable step, court rules
Believing that the posting of his job in the local news made it impossible for him to continue with his work, Patterson sued the company, arguing that the posting should be equated with his dismissal. Interestingly, an Ontario judge recently agreed.... [read more]
Maternity Leave can thwart dismissal
It is one of the least understood – and most contentious – issues in employment law. An employee is fired either shortly before, or during, her maternity leave.... [read more]
Office romance is a tricky business
Employees cannot escape liability because the actions giving rise to a complaint have occurred after working hours or away from the workplace. Even a tenuous connection to work is enough for an employer to intervene.... [read more]
Overtime
When does the workday begin and when does it end? This is the question being put to judges across the country as lawsuits for unpaid overtime make their way through the courts. And it will continue to garner attention as our reliance on the electronic workplace, replete with BlackBerrys, home offices and remote access, ensures that the office no longer has traditional borders.... [read more]
Overtime pay required
Most of the Canadian workforce is not paid for the minutes or hours that are actually worked. Such dedication may be desirable to employers – but that does not necessarily make it legal.... [read more]
Performance Appraisals can cut both ways
Dismissing an underperformer is not an easy task! Court cases clearly state that employers owe a duty to provide employees with the opportunity and means required to improve underperformance, if dismissing them on those grounds. Judges require that employers prove an employee was grossly incompetent, and that progressive warnings were issued, clearly identifying areas of concern.... [read more]
Performance Improvement Plans
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.... [read more]
Punitive damages
In the often twisted world of Canadian workplace law, both employers and employees tend to exaggerate facts in an effort to improve their own cases. Whether it’s a deliberate strategy or a simple white lie, our courts are increasingly signalling their disdain when stories without the conviction of truth find their way to trial. A recent decision from British Columbia reminds us all that honesty remains the best policy.... [read more]
Selecting the proper lawyer for your case
How do you win in court? It starts with selecting the proper lawyer. But with countless factors to consider, finding the ideal lawyer to navigate your case is a difficult, if not overwhelming, task.... [read more]
Stating "I quit" doesn’t always make it so
Upset after a meeting with her boss, Joey Bru said she was quitting. Believing that she had done just that, Bru’s employer replaced her. But, according to a British Columbia judge, even when employees say they are leaving, they may not have actually quit.... [read more]
Temporary workers
Concerned about the costs and liabilities associated with the traditional employer-employee relationship, companies have increasingly turned to non-conventional employment arrangements, believing that through these devices they will be automatically relieved of liability for regulatory complaints, employment standards claims, tax penalties and lawsuits by disgruntled employees. But a new era of corporate workplace responsibility has dawned – and with it many of these employers may now be mistaken. ... [read more]
The duty to mitigate: working for my former boss!
Until recently, it was generally proper for an employee to reject returning to the workplace that fired him. However, that all changed when the Supreme Court found that unless there are conditions such as humiliation, embarrassment or hostility, employees would be expected to return to their jobs.... [read more]
There is more to a case than just the facts
Generally, employers are in no hurry to move cases along quickly. They would much prefer to wait and let the employee’s legal costs accumulate and her frustrations grow. In typical cases, claims can meander through the court system for years, with inherent pre-trial delays, mandatory mediations and few, if any, deadlines. Few unemployed can afford to wait for a trial. Fewer can afford to pay for one.... [read more]
Workplace investigations
While lying during the course of an investigation may be deemed cause for dismissal, Canadian employees should pause given the court’s willingness to also equate silence with dishonesty.... [read more]
Workplace Law’s biggest misconceptions
Poor performance may be cause for dismissal.... [read more]
Workplace policies
Many disputes are rooted in, and later resolved on the basis of, policy. Or at least they should be. This applies in law as much as it does in life: our courts do not always decide employment cases based on what is reasonable or just, but rather, on what makes for the best workplace policy.... [read more]
Employment Law Articles: 2008
Anything goes in employment contracts
Canadian employers often protest that workplace laws favour their employees. My view is otherwise. A well drafted employment agreement can provide an employer with the device to defeat most claims. And, as most employees lack the bargaining leverage or sophistication to renegotiate unfavourable contractual language – by signing these agreements they face an uphill battle should confrontation ensue. But despite an employer’s ability to bulletproof its liability, not all written promises will ultimately be enforced. ... [read more]
Anything goes in employment contracts - Beware of dangerous terms
When it comes to employment contracts, all is fair in love and war, as pretty much anything can be incorporated into the deal. Employees should, therefore, beware of the following terms.... [read more]
BlackBerry 'slips' can lead to trouble
Personal Digital Assistants (PDAs), such as BlackBerrys, have grown in popularity – so much so, that a growing number of organizations are limiting their employees’ unrestricted use of these devices while at, or even away from, work. And there is good reason to do so, as employees are too easily confusing their privacy rights with freedom from workplace consequences. Where the PDA is provided by the employer or accessed through its network, employees should have no reasonable expectation of privacy. Therefore, where personal use is permitted, employees should concern themselves more with losing their jobs – instead of simply losing unlimited access to their PDAs.... [read more]
Blunder resignation and pay the price - Employee caught in “twilight zone”
When Joan Britton left the Mississauga offices of Partners Graphics after a confrontational meeting with her bosses, she didn’t think it would be her last day of work. Britton hadn’t been formally terminated, and she assumed she hadn’t resigned either. The court decided otherwise.... [read more]
Broad remedies for discrimination
his is the tale of Ali Tahmoupour, who claimed that discrimination cost him his job. He took on the RCMP in a seven-year battle culminating in 20 days of trial – and won. ... [read more]
Class action lawsuits on the rise: But mass proceedings may be mass mistake
It’s workplace law’s newest, and biggest, phenomenon: lawyers specializing in class action lawsuits, joining together groups of employees with similar legal claims. But mass justice may come with a price: employees, excited by the prospects of multi-million dollar settlements, unaware that their interests may not be aligned.... [read more]
Clearing up misconceptions - Mistakes can be avoided
Canadian employers don’t always get to call all the legal shots. Despite workplace laws favouring their legal position, errors made in managing their human resources can put their company’s name on the front page of my next statement of claim. Here are my five favourite employment law mistakes that a company can make, followed in my next column by the top five mistakes employees can make at work.... [read more]
Court rules in favour of employee induced to leave her job
- Promises of "dream team" lead to additional damages
Routine may be agreeable – but think twice before trading routine for the temptation of change. A “lifer” of the auto sales industry, after working at a series of dealerships, fifty-seven year old Janet Deplance had finally found her home. For ten years, Deplance prospered as a business manager for Gemini Ford in Hamilton, Ontario, believing it would be her last stop until she retired.... [read more]
Definition of a Contractor - Contractual "label" not always dispositive
When real estate broker Vess Ivanov provided three annual contracts referring to agent Ilona Slepenkova as his contractor, she signed each one on the dotted line. But their relationship eventually soured and when they next met in court, Ivanov faced a wrongful dismissal claim.... [read more]
Employee bound by agreement he didn't agree to
The golden years are not always golden. Just ask Stuart Johnson. Nearing his 65th birthday and 40th year with his company, Johnson could have been celebrating. Instead, he was told that company policy required him to retire. But Johnson, the on-air operations manager for Global Television in Victoria, B.C., didn’t believe he had agreed to mandatory retirement at age 65 and argued that it wasn’t a term of his employment. The court decided otherwise.... [read more]
Employees must read the fine print
It’s possibly the worst fraud in workplace law – Corporations, with expensive lawyers and deeper pockets, convincing employees to sign one-sided contracts that reduce their legal rights. And employees, without bargaining power or an understanding of the law, not realizing their interests have been undermined.... [read more]
Employees should respond to discipline at work
Canadian employers seeking to discipline and then dismiss a habitual underperformer have limited options at their disposal: pay severance, and get it over with, or progressively build a case for cause. If an employer chooses the latter course, the underperforming employee may grow tired of the battle and voluntarily leave, or enough ammunition may be obtained to ultimately support the employer case. But instead of accepting defeat, an employee should fight back - challenging any discipline imposed and building his or her own supportive documentary case.... [read more]
Employees should think twice
Here are the top five mistakes employees can make at work.... [read more]
Gossip can be harmful to your career
Are you angry with your company or your boss? Be careful not to confuse freedom of speech with freedom from workplace consequences because, as a Canadian court recently found, gossip can be harmful to your career. Upset with her perceived mistreatment at work, Deborah Lee Dilg spoke to her co-workers to criticize her boss. ... [read more]
Internet misuse at work
With positive performance reviews and regular salary increases, 14-year company veteran Gregory Backman had nowhere to go but up. But life can be lonely at the top. Having admitted to viewing pornography on his workplace computer, Backman was immediately fired. He wasn’t about to go easily. Supervising employees at the Saint John, New Brunswick premises of Maritime Paper Products Ltd., Backman had run into problems with Internet pornography before. He had been caught viewing inappropriate websites in 2002 and 2005. When a computer audit revealed that Backman had been surfing pornographic web sites for more than 10 hours in October 2006, Maritime Paper’s response was swift. Backman was shown the door. ... [read more]
Jurisdictional differences
With multi-million dollar judgments routinely awarded to employees in American courts, most Canadian employees would prefer to have their cases heard before an American judge or jury, if presented with that option. But Canadian employees don’t have it so bad. In most cases, Canadian workplace laws actually favour their legal position. Here are the top five legal advantages that Canadian employees possess, when compared to our American neighbours.... [read more]
Labelling employees as contractors doesn't necessarily make it so
Customs used to define Canadian employment law – not contracts. When there was a workplace dispute, judges would decide cases based on what was reasonable or just or what the parties would have agreed to if they had thought about the issue from the outset. Customs, however, have been replaced by comprehensive employment contracts and lawsuits for wrongful dismissal. Now, instead of being asked to consider what’s most reasonable or fair, judges are asked whether a contract applies and, if so, what its terms represent. But what happens when a contract doesn’t accurately portray the true nature of an employee’s job? As La-Z-Boy Canada Ltd. recently learned, sometimes employees are not bound by the agreements they have agreed to.... [read more]
Law now leans towards workers
Except in extraordinary cases, employees facing slashed salaries, abusive bosses, demotions or material changes to their jobs used to be without a legal remedy. The reality for most was to either leave, or lose, their job. But employers no longer get to act with legal impunity. Now, equipped with the knowledge that they can sue for constructive dismissal damages, employees subjected to workplace changes turn to the courts... [read more]
Malicious prosecution: innocent employee convicted of theft
When a Niagara Falls, Ontario, outlet of The Beer Store noticed cash shortages at the store, its response was swift: surveillance cameras were installed to monitor the employees. Soon a number of suspects were caught on tape, one of whom was employee Douglas McNeil. McNeil was recorded taking money from the cash register. However, on separate portions of footage, the cameras showed McNeil placing corresponding amounts back into the register. Despite knowing that McNeil had put the money back into the till, The Beer Store reported it as a theft to the police. In doing so, it submitted the entire videotape, showing McNeil taking money from the register. However, it did not specifically mention to the police that the tapes also showed McNeil putting the money back. Based on The Beer Store’s review of the footage, criminal charges were laid and McNeil was later convicted of theft and terminated with cause.... [read more]
Mental distress from work is not always compensable
Having just been denied a promotion at work, Maria Amaral was crestfallen. As an employee of the Canadian Musical Reproduction Rights Agency for 23 years, Amaral thought that she should have been promoted to manager. But her boss, Caroline Rioux, thought otherwise. Shortly after the failed promotion attempt, Amaral refused to write a letter when Rioux directed her to. She was disciplined. Dejected, she let her attendance and performance dwindle. Rioux continued to warn Amaral, and eventually the agency relieved her of some of her duties. But Amaral’s absenteeism and performance worsened. The agency placed Amaral on probation and planned for her eventual dismissal.... [read more]
New Year's Resolutions - Don't leave agreements to handshakes or memory
Here is a sampling of some of the most frequently asked questions I received in 2007 – and the advice I provide for employees in 2008.... [read more]
No more bad faith? SCC ruling catastrophic for employees
It is one of the most important concepts in workplace law – or at least it was. Since 1997, When the Supreme Court presented Canadian workplaces with the Wallace decision, employers have had an obligation to play nice and behave well at the time of dismissal, or face paying additional “bad faith” damages to a former employee. But following the Court’s most recent landmark decision, employers now go from strength to strength. ... [read more]
Not all employees entitled to "Family Day"
Employees in Ontario celebrated the Ontario Government’s recent decision to add “Family Day” as the ninth public holiday under the Employment Standards Act (“ESA”). But not so fast: despite its status as a statutory holiday, not all employees will receive the benefit of an additional day off work, or extra holiday pay if asked to work on that day. Many employers in Ontario are avoiding Family Day by relying on a section of the ESA that allows them to disregard it, if they were already providing a greater entitlement to their employees.... [read more]
Reinstatement isn't an option for Canadian employees
The termination of a Toronto sports icon had his fans crying foul. Rogers Centre beer vendor, Wayne McMahon, also known as the "Ice.... Cold.... Beer Guy", was fired last Tuesday by the Rogers Centre food and beverage service provider – for allegedly serving alcohol to a 22 year old mystery shopper, without asking for I.D. Despite the public support for McMahon, his former employer will not reinstate him – but it does not have to, as a judge will not order a former employee back to the workplace. The best McMahon could expect if he commenced legal proceedings, therefore, would be wrongful dismissal damages for losing his job.... [read more]
Rules of Misconduct Prevail
Having been inadvertently overpaid for four years, when Huntley Zia disagreed with his employer’s actions in reclaiming the money, he took it to court. Zia’s lawsuit sent shockwaves around the B.C. offices of Telus Communications, where suing his employer while he was still employed was regarded as more than inappropriate; it was the last straw.... [read more]
Signed documents will seldom be overturned
This is the cautionary tale of two cases that together reveal the fate of employees too quick to sign their names. Just-fired, after 15 years as a sales manager for Pennzoil-Quaker State Canada, Patrick Barr found himself in a pickle. Presented with an offer of severance, Barr was given two weeks to decide his fate: sign his name on the documents, thus accepting the company’s offer, or receive nothing more. ... [read more]
Silence may not always be golden
At the age of 66, Kathleen Fisher found herself in a pickle. Believing she was being forced to retire, she turned to her company president, Keith Andersen, looking for answers. Anderson may not have agreed – but he offered no solution. As a B.C. appeal court recently concluded in finding Fisher was dismissed: his silence spoke volumes.... [read more]
Sometimes even lawyers need counsel
I love the tales from the workplace trenches. Those that I select to report are chosen based on a combination of their merit, law, skill – and sometimes error. Hired as an associate lawyer by the law office of Leonard Levencrown, for two years Sharon Johnston and her boss enjoyed a “father/daughter” relationship. Like most small law firms, the pair were close-knit and Johnston, the associate, depended on her boss for work. When financial troubles struck this office, it would have been no surprise that Johnston was dismissed for lack of work.... [read more]
Supreme Court orders fired employee to return to old job
We have decided to fire you. Now go back to your desk and finish your work! After a bitterly fought election of a new union executive whose candidacy he had opposed, Teamsters business agent Donald Evans saw the writing on the wall. When the new union president took over, Evans and five other employees lost their jobs.... [read more]
Warning signs will be clear - Job postings may be logical steps
Employers are becoming increasingly adept at covering their bases when dismissing employees. But with no legal entitlement to continued employment, no one is indispensable. Canadian employees may have little certainty these days – and less job security. Here are some signs that you are about to be fired that I have gleaned from my clients in the workplace trenches.... [read more]
Workplace absenteeism: assess context first when dismissing employees
Ignorance may be real. But sometimes it leads to a paid vacation. Fraught with personal problems, when busy season at work hit, equipment operator Brad Smith had little tolerance left. Despite supportive co-workers and comfortable patterns, a last-minute request to work overtime pushed Smith over the workplace ledge. Deciding that he needed time off work, Smith spoke to his supervisor, seeking assurance that he could leave. The response was swift: Smith was told to do “what you gotta do. Believing this statement meant that he could simply pack up and leave, Smith left work – without indicating when he would return. Without knowing where Smith was, and having failed in its various attempts to contact him, Smith’s employer, the City of Ramara, considered Smith’s absence to be misconduct and fired him.... [read more]
Employment Law Articles: 2007
A recipe for severance - Courts will consider a variety of factors
Seldom is severance pay based on arithmetic. Courts do not follow any defined rules in calculating how much severance to pay to a particular employee. Neither does your ex-employer. Rather, a judge’s task is to consider all of the circumstances that either hinder or help a dismissed employee to find a new job. I am familiar with over 100 factors relevant to this determination. However, rarely will that many issues compete in any one case. More typically, there are four or five factors that are always more often considered than others... [read more]
A recipe for the recently dismissed: 4 sure-fire ways to receive appropriate severance
Terminations are psychologically and financially difficult. Therefore, I offer the following four tips to the recently departed. If nothing else, following my advice ought to ensure an appropriate severance package, if not more.... [read more]
Anything goes in employment contracts
Unfortunately for employees, the law provides few safeguards regarding what can and cannot be agreed to as a term of employment. As well, with the recent shift downwards in unemployment rates, employers have had to adapt, minimizing the risks of hiring transitory employees by proposing contracts loaded with language to protect them at every opportunity. Employees should beware of the following six most dangerous terms, now appearing in more employment contracts – and court dockets... [read more]
Blog postings can be cause for dismissal
Employees who believe that their conduct away from the office is immune from discipline are mistaken. Where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.... [read more]
Blogging can cost you your job
Hired to promote Nunavut as an arctic Nirvana, Penny Cholmondeley decided when she came across piles of abandoned machinery and rusted cans scattered on the snowy tundra outside Iqaluit that pictures of the debris would make for a captivating posting on her personal Internet Blog. As well as photos of garbage on the tundra, Cholmondeley also posted a poor review of a local restaurant and griped about the high prices for groceries. However, Cholmondeley’s boss at the Nunavut Tourism Agency disagreed; when he learned of Cholmondeley’s artistic tastes and the manner in which she promoted them, Cholmondeley was immediately fired. ... [read more]
Blunder procedure and pay the price
When Garry and Mark Coleman heard that fellow employee Wayne Demers was planning to file a fraudulent insurance benefit claim, they blew the whistle to their employer. Demers was immediately fired. Then, in typical union fashion, hostility brewed among Demers’ former union brethren. When that hostility escalated to fear, the Colemans resigned. Months later, with their reputations questioned and their jobs long gone, they turned to the courts instead of their union to grieve their alleged wrongs. Their decision proved fatal. ... [read more]
Changes to Ontario's Human Rights Regime to impact litigants
Since the mid-90’s, dissatisfied litigants of Ontario’s human rights regime have bemoaned its apparent shortcomings. A blend of limitations, owing their origins to the faulty composition of Ontario’s current human rights legislation, have ultimately left discrimination complainants without adequate redress. Complainants before the Human Rights Commission wait years before a resolution is reached, or imposed. Conversely, since the Commission lacks adequate discretion to immediately dismiss unmeritorious complaints, innocent corporate respondents are burdened with defending marginal complaints.... [read more]
Constructive Dismissal Proves Costly
Sometimes, serious changes to your job may have to be accepted. Just ask David Chapman. Working his way up the Bank of Nova Scotia’s corporate ladder for 36 years, Chapman resigned claiming a reduction in his salary and the Bank’s failure to honour a promise amounted to his termination. The Court decided otherwise. ... [read more]
Constructive Dismissal Proves Costly
Jean-Louis Drapeau was the consummate company man. But when his job was gradually eroded, his loyalty quickly turned to fury. Believing that his demotion was tantamount to a dismissal, Drapeau fled and then proceeded to sue his ex-employer. His belief was vindicated at trial. ... [read more]
Employment claims have expanded
Workplace disputes are no longer “garden variety.” Enter creative employee-side lawyers and their clients’ willingness to challenge their ex-employers in court and demanding more severance pay is only one of the employee’s options. But the facts have not changed; rather the courts’ ability to remedy alleged wrongs has expanded. ... [read more]
Employment contracts are negotiable – courts will imply terms
Employees routinely sign contracts replete with unfavourable terms: contracts can give employers the right to eliminate employees with minimum notice, banish them to far away jurisdictions, slash salaries or demote – with impunity, prevent competition following their departure, and break promises or representations at their pleasure. ... [read more]
Employment insurance benefits are not a sure bet
Employees gripe about deductions for employment insurance (EI) premiums taken directly from their paycheque, yet few are cognizant of when and how they can apply for payment of employment insurance benefits. Eligibility for employment insurance (formerly called “unemployment insurance”) has three simple rules... [read more]
Employment Law Basics
The five most frequent files appearing on my desk – and in court dockets.... [read more]
Employment Policies Not Always Enforced
Left to pay part of her customers’ bill, waitress Karen Glazier grabbed her manager’s swipe card and wrote off the debt, ensuring that her own paycheck wouldn’t be docked. Although Glazier didn’t have permission, she thought she was just following procedure. When her employer found out, however, Glazier was fired for breaching company policy. The only problem was that she had never been given a copy. ... [read more]
Failure to Mitigate defeats employee’s winning claim
How do you beat your ex-employer in court but ultimately collect little or no damages? Just ask Leo Magnan. He succeeded in proving that he was wrongfully dismissed but failed to collect the true value of his claim. His mistake: Magnan couldn’t demonstrate that his dismissal caused him a financial loss. ... [read more]
Frustration of contract not easily proven
Can an injured employee languishing on medical leave simply be discarded by his employer? According to a recent British Columbia case, absolutely not! When Kashmir Sandhu took time off work to recover from a car accident, he expected to return to his job when his injuries healed. But the problem for Sandhu’s employer, Delta, B.C.-based North Star Mills Ltd., wasn’t allowing Sandhu an extended absence from work – it was whether it would permit him to return. ... [read more]
Handle References with Caution
Picture this scenario: a former employee requests a letter of reference. His next job is contingent upon it being positive. He may have been well liked, but his performance left much to be desired. Commenting positively, without mentioning the problems he created, is simply not candid. But alluding to the quality of his work will damage his prospects. And, while invaluable to the departed employee, the reference you give is just as important for his prospective employer, who will rely on it in deciding which candidate should be offered a position. ... [read more]
Harassed employees are no longer without remedy
Workplace abuse may have been obvious, but rarely did it amount to a paid vacation. Employees faced with a workplace abuser used to visit their doctor for a prescription or a note authorizing a leave of absence. Except in extraordinary cases, employees were bereft of a legal remedy, as courts had little appetite for walking into the workplace and ordering bosses to be nicer to their employees. The reality for most: either leave - or lose - your job. ... [read more]
If terminating an employee, don’t pay without a release
If you’re an employer, one of your best defences to prohibit further legal action from a dismissed, and typically aggrieved employee, is a valid release. Therefore, if any doubt exists, a dismissed employee should not execute — and an employer should not pay — until both parties are satisfied a mutual agreement has been reached and is reflected in the content of the release. ... [read more]
Inappropriate Interview Questions
Too many operate under the delusion that no interview question can be asked relating to personal characteristics or circumstances. However, Canadian employers are permitted to ask tough personal questions. While human rights legislation prohibits employers from making decisions based on permanent personal features such as race, place of origin, colour, religion or disability, among others, it does not prevent them from asking questions based on these grounds.... [read more]
Inducement may lead to damages
Given big promises, offered big money and assured long-term job security, sales all-star Melissa Antidormi still wasn’t about to roll the dice with her career. But on the other hand, U.S-based Blue Pumpkin Software Inc. wasn’t about to take no for an answer. Blue Pumpkin spent its time and energy recruiting Antidormi for over a year and its persistence and persuasion finally paid off. In turn, Antidormi left a well paying and secure position to join Blue Pumpkin with promises that the sky was the limit and her job would be safe for years. But some promises are made to be broken. Citing financial reasons, Blue Pumpkin fired Antidormi 6 months after hiring her. In the end, the company spent more time pursuing her than it did employing her. ... [read more]
Investigate fully before condemning employees' fate
Proof of workplace misconduct may be present, but it seldom matters if the punishment doesn’t fit the crime. ... [read more]
Laws of resignation may favour employees
Canadian employees have no right to severance pay if voluntarily leaving their job. They may claim this is unfair - but not so fast: the laws of resignation generally work in their favour. ... [read more]
Legal issues arise when a business is sold
Ideal Mold Corp. was built on the backs of its owner, Frank Riegl, and his number two man, production manager, John Novosel. Opened in 1974, the business prospered and 15 years later, Ideal Mold was worth millions. Novosel had been led to believe that, one day, he would take over the business when Riegl retired. Novosel and Riegl frequently discussed the matter and Riegl encouraged Novosel to run the business as if it was his own.... [read more]
Letters of reference are an invaluable tool
A letter of reference is the final request made by many of the recently departed. However, whether we like it or not, the trend for Canadian businesses is to provide a simple letter of confirmation instead; delineating only the rank and file and carrying little, if any, useful commentary. As a result, oral references have taken on a more significant role, and much to the chagrin of many employees. ... [read more]
Lying on your resume could cost your job
Imagine this scenario: You have landed the job of your dreams. Six months later, you get an email, summoning you to the manager’s office. Confused, you make your way to her office. You are joined by the human resources manager, who tells you that the company has discovered that you were dishonest on your resume, and as a result, you’re being fired. Studies reveal that resume falsification is a common event. Statistics suggest that as many as 50 percent of all resumes contain some degree of distortion - from white lies to outright whoppers.... [read more]
Make sure to read the fine print
In speaking recently to a forum of job seekers, I was asked what tops my list of “don’t” when it comes to receiving proper severance. Although, at first, it seemed obvious to me, I quickly realized that it was oblivious to others. Quite simply, too many employees make the strategic blunder of immediately signing a release without having first consulted with a lawyer. In fact, whether or not a release has been signed, is one of the first questions I ask when meeting with any potential new client. ... [read more]
New Year's resolutions for employees
My top employment law resolutions to help assist employees inspired to change. ... [read more]
No Excuse for Sleeping on the Job
Richardson, a Production Foreman for Davis Wire Industries Ltd. was a stellar employee for 17 years. That is why his General Manager, Stephen Ward, was slow to accept the mounting reports being received from other employees that Richardson was sleeping on the job. But the complaints mounted and Ward, reluctant to confront Richardson with the allegations, decided to take a much more clandestine route to investigate the truth: Ward positioned a hidden video camera in the employee lunchroom and waited for Richardson to make his appearance. Over a period of four days, Ward concluded from the videotapes that Richardson had, in fact, been sleeping and that his ”so called” power naps went beyond the 50 minutes he was allotted as a break.... [read more]
Off-duty activities can affect the health of your career
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 more]
Overtime Pay Required
Many employees are not paid for the minutes or hours they actually work. Salaried employees, for example, are paid an annual rate of compensation. If a salaried employee works more than the standard working week, he or she does not always expect to be paid extra for that time; it is viewed as part of the job. Such dedication may be desirable to employers – but that does not necessarily make it legal. ... [read more]
Performance Appraisals can cut both ways
Employers seeking to dismiss their habitual underperformer usually follow a prescription for a tidy divorce: gather ammunition and create a paper trail documenting any and all allegations and concerns. Typically, this is accomplished by a series of negative performance appraisals. If the employee then wishes to go to war, he’ll have a mountain of evidence to overcome. Performance appraisals can, however, be a double-edged sword. ... [read more]
Permanent Illness can put your career at risk
Employers are entitled to expect their employees to show up for work. Without a valid reason, employees who don’t show up are subject to dismissal without pay. Temporary illness, however, usually offers that valid reason. But what of the employee who’s disability renders her unlikely to ever return to her job? As Terry Ann Wilmot recently learned, illness is not always a shield from dismissal.... [read more]
Refusing to accept blame can cost your job
A serious error doesn’t necessarily justify discipline. But refusing to accept blame can cost you your job. ... [read more]
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. ... [read more]
Selecting the proper employment lawyer for your case
When it comes to winning a battle with your former employer, the most important decision you make is selecting the proper lawyer. Most lawyers argue that the success or failure of a case, is predicated on a combination of the facts and merits of the claim, the prevailing law, the financial and psychological stability of the parties, the relative strengths and weaknesses of the counsel involved and, not least, some luck. In my view, however, luck should have little or no impact on the ultimate outcome of negotiations or a lawsuit. Rather, great preparation, diligent research, foresight and an infallible strategy is a prescription for winning the case that will compensate for even the worst twists of fate. ... [read more]
Senior managers may owe a duty of fidelity
All employees owe a duty of fidelity to their employers, but those in senior management positions may owe even more. ... [read more]
Signed documents will seldom be overturned
What results if a just-dismissed employee is essentially forced to sign a broad-ranging release, preventing him from taking further legal action? Does it matter if the employer took advantage of the employee’s personal problems, effectively “preying” on his concerns, and even threatening him by stating he would get nothing unless he signed his name? According to a recent Ontario judge, not much! ... [read more]
Strategies for severance success
Since employees have no legal entitlement to continued employment, Canadian employers get to call all the shots. Aside from allegations of discrimination, an employee’s only job security exists in the form of advance notice of termination or pay in lieu of notice. ... [read more]
Terms of Contract are Binding
Madhu Suri must have been crestfallen. Not only had he just lost his job, but he was told that the hefty severance agreement he thought he had negotiated was no longer an option. But instead of simply ignoring his legal rights, Suri got himself a lawyer. ... [read more]
The Rocky Road to Dismissal - Employees must combat warning signs
With no legal entitlement to continued employment, Canadian employees decry that the law of dismissal favours their employer. Employers, however, don’t have a magic bullet for liberating themselves from unsatisfactory employees; most mistakes are made by the employees themselves.... [read more]
Think long and hard before you resign
When all else fails, it may be time to resign. But before you take that step, make sure you know exactly what you are walking away from.Recently I was retained by Shauna, who is a business development advisor for a mutual fund company. Almost positive that a pink slip was coming her way, Shauna was inclined to resign before the company could terminate her. By doing so, she thought she could save face. However, when it came to walking away from her job with her self-esteem intact, Shauna was forgetting that she would also likely be walking away from a severance package. ... [read more]
Think long and hard before you resign
When all else fails, it may be time to resign. But before you take that step, make sure you know exactly what you are walking away from. Recently I was retained by Shauna, who is a business development advisor for a mutual fund company. Almost positive that a pink slip was coming her way, Shauna was inclined to resign before the company could terminate her. By doing so, she thought she could save face. However, when it came to walking away from her job with her self-esteem intact, Shauna was forgetting that she would also likely be walking away from a severance package. ... [read more]
Think Twice Before Taking Clients
Thinking of jumping ship to the competition? You better think twice before taking your clients with you. 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 built and the key employees who have built them. ... [read more]
Tips for employers when checking references
For many recently dismissed employees, letters of reference are invaluable when it comes to securing another job. On the flip side, however, letters of reference can be just as important for prospective employers when selecting whether or which candidate should be offered a position. ... [read more]
Ultimatum tantamount to dismissal
Summoned to his boss’s office, Stew Schwindt was handed a piece of paper that stated that he was resigning and told that it would be best to sign his name. Besieged, Schwindt scribbled his signature and then was immediately escorted off the premises of the Regina-based Canadian Tire franchise, where he had managed the service department for nearly a quarter of a century. But Schwindt had not agreed to retire and believed that his employer had acted improperly. Recently, a Saskatchewan judge resoundingly agreed. ... [read more]
Use Facebook with Caution
“The Internet website that you have requested has been deemed unacceptable for use for government purposes” – so read the warning that greeted thousands of Ontario government employees, political staffers, MPPs and cabinet ministers who tried to log on to the popular website Facebook.com last week. Facebook has grown in popularity -- so much so, that a growing number of organizations, including your provincial government, have restricted access to the site from work. And, in my view, there is good reason to do so, as employees are too easily confusing freedom of speech with freedom from workplace consequences.... [read more]
With appropriate notice, anything goes
Having the terms of your job forcibly changed is usually taboo. But the tables are turned when advance warning is provided. Most employees believe that their jobs can seldom be varied without their consent. As an Ontario judge recently confirmed, those employees are mistaken. ... [read more]
Wrongful Dismissal not clear cut
Six factors to consider if you’ve recently been dismissed.... [read more]
Wrongful Resignation Can Prove 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 sufficient warning or even a good bye. ... [read more]
Employment Law Articles: 2006
A bit of bad faith can go a long way
After putting in many long hours of hard work as a machinist for food packaging supplier Packall Packing, all Roland Carter wanted to do was take a four-day vacation. But when Carter filled his name under the wrong day off in the company’s vacation planner, his vacation became more than just a long weekend — he was fired and out of work for nearly two years. ... [read more]
Breaching company policy can prove costly
To the dismay of many employers, not all breaches of company policy will justify firing the responsible employee. However, as a Toronto area Longo’s grocery store recently learned, a little bit of yogurt and cream cheese can go a very long way. Entrusted with important responsibilities as a grocery store manager, Ray Agosta regrettably took company policy into his own hands. Captured on security cameras and spotted by a loss prevention specialist, Agosta was caught taking five items to his car that he had not checked out of the store. However, when Agosta’s story for taking the items didn’t check out either, the cost to Agosta was more than just his bill for the food; he paid by losing his job too. ... [read more]
Careful before you try to take clients with you
Having made the decision to jump to a competing investment firm, broker Ed Darling* thought he would take a few clients with him. But when Darling got slapped with a bill for nearly $20,000, he wished he had just stayed put. Darling was a highly successful broker for the St. Albert, AB investment firm Edward Jones. After building up a client base, he felt he'd find greener pastures by starting up his own office with a competing firm. ... [read more]
Chef dishes wrongful dismissal suit
A politician’s broken promise or a recipe for disaster? For Prime Minister Stephen Harper and his former chef, Henrick Lundsgaard, the truth remains to be seen. What we do know is Harper’s former chef has a new and special dish he is cooking up for the prime minister — a wrongful dismissal lawsuit. ... [read more]
Diligent job search can save your case
Succeeding with your termination case takes more than an excellent set of facts, a great lawyer and a little bit of luck on your side. Many good cases go awry because a dismissed employee does not look for another job. The law refers to this principle as mitigation and it requires a dismissed employee to make a diligent search for another similar job. If you do not, the damages you can claim may be substantially reduced. Therefore, I offer the following recommendations for employees to help build their case... [read more]
Dishonesty costs auto exec his job
Pat Donnely would have made Pinocchio proud. A model of excellence for 32 years, the auto executive had nowhere to go but up. However, those with the most to gain carry the greatest risk of loss. Repeatedly concealing his involvement in a scheme of strippers, strip clubs and secretive billings, Donnely ensured his reputation wouldn’t be harmed. But when a company-wide audit placed him at the scene of the crime, Donnely’s failure to speak the truth cost him more than a chance at redemption; after 32 years of dedication, it cost him his job. ... [read more]
Dismissal for theft or dishonesty
The cost to your company of engaging in a cash diversion scheme and lining your own pockets with the money over a number of years –> $12,000. The cost of a Polaris ATV that you received as a gift from a customer for providing them with unauthorized discounts –> $5,000. The cost of being caught red handed and fired immediately after spending most of your life working for the same company –> priceless.... [read more]
E-mail misuse leads to work trouble
An e-mail could seriously harm your career. It cost Nicolas Di Vito and Alastair Mathers theirs. Di Vito and Mathers, employees of MacDonald Dettwiler technology company, distributed a vulgar e-mail detailing the sexual gymnastics of an overweight female co-worker. They viewed it as a prank.Although neither created this e-mail, they created a problem for themselves by not deleting it. About a year later, they revived their joke, forwarding the e-mail to a number of co-workers. Another employee posted it on the office bulletin board. When questioned, they lied. Unluckily, the e-mail was traced to their computers and they were fired.... [read more]
Embezzling costs more than job
Stealing millions from the bank and giving it to his friends, executive Rodney Chen said he was doing his customers a favour. But when the money was discovered lining Chen’s own pockets, losing his job was the least of his worries.... [read more]
Employers Should Review Contractual Hiring Practices
In today’s competitive marketplace, any advantage is a disadvantage to your opponent. Armed with the knowledge that an employer can contract out of all but its minimum statutory obligations, I’m mystified why more businesses don’t follow the trend. Nevertheless, for those proactive organizations concerned about the bottom line, the key is to draft contractual provisions that will withstand judicial scrutiny. ... [read more]
Employment contract may cause later problem
Recently, I was consulted by an employee who was terminated after 10 years of faithful service. Given her tenure and responsibilities, she would have been entitled to a substantial termination package, but she had signed an employment contract that limited her termination payments to a much smaller amount.... [read more]
Employment Contracts Should be Reviewed
It never ceases to amaze me how just a little bit of foresight can go a very long way. Employees often bemoan the fact that they have little understanding of the employment contracts they are asked to sign. Such contracts are usually inundated with legal phraseology. But entice a soon-to-be employee with prospects of job security and many people will just sign their name unaware of the consequences that may arise down the road. ... [read more]
Firing, hiring raise legal issues
Donald Trump has made a fortune with the use of the phrase, “You’re fired!” on his hit reality television series The Apprentice. However, the former contestants or “apprentices” can’t be all too pleased about having been terminated and embarrassed on national television. It’s a good thing they can’t sue The Donald for wrongful dismissal. Most people don’t stop to consider the legal rights and obligations that surround their employment relationship. They may not think it is necessary to know. Or they are simply discouraged by all the legal jargon.... [read more]
From Paychecks to Pinkslips
Picture this: you’re happily employed and not looking elsewhere. One day, a recruiter comes knocking with promises of greener pastures and more dollars. You take a chance and meet with the company representative. The picture he paints is rosy. He tells you they’ve just secured a new client and you are going to head up the new project. The job is supposed to be secure for years. You resign and sign the contract. But, four months down the road, the funding falls through and instead of a paycheck, you’re left with a pinkslip. ... [read more]
Harassment doesn't belong at work
Every employer in Ontario has a legal obligation to provide a workplace free from harassment. This obligation extends to protecting you from harassing acts committed by other employees, management personnel, agents of the company, and clients or customers. Many times, both employees and employers are not clear about what their obligations are and what harassment in employment actually means. Furthermore, many people who have been subjected to harassing behaviour are not aware of what they can do to remedy the situation.... [read more]
Harassment free workplaces
Employers slow to catch on the pitfalls of employees who are abused or bullied by their bosses are now singing the bad boss blues. ... [read more]
Have you been wrongfully dismissed?
Here are seven questions to ask yourself if you’ve recently been dismissed.... [read more]
Ideas not always straight from source
Do you retain ownership of an invention or a great idea that you’ve thought of or created while at work? Usually, ownership of a workplace invention isn't in dispute. For instance, when an employee is hired to create a new business strategy for his/her employer, the new and great idea that comes about then belongs to the employer — for its own use and profit. However, difficulties can arise when, during the course of employment, an employee creates something of value that he/she wants to then use to turn a profit outside of the job.... [read more]
Investigating allegations of misconduct
A lot can be discovered just by asking the right questions. That is why I’m truly amazed when employers fail to confront employees with allegations of misconduct prior to condemning them, or worse, terminating them for alleged just cause. Employees often bemoan the fact they were not provided with “due process” or an opportunity to plead their case prior to discipline being administered. It seems that when serious allegations manifest, employers often respond with a coup de grâce: the employee is shown the door. And, she can forget about her severance. ... [read more]
Is your Boss a Bully?
Employees faced with an abusive or harassing boss used to visit their doctors for a prescription or a note for a leave of absence. Now, armed with the knowledge that they can sue for significant damages, traumatized employees call their lawyers too. Recently, three separate court decisions reinforced the message that employees can sue for abusive, humiliating and harassing behaviour suffered at the hands of their bosses. ... [read more]
Journalist's revenge costs job, reputation
His work and ethics criticized, a British Columbia CBC journalist decided to take the law into his own hands. He attempted to poison his adversary by contaminating a box of chocolates he then sent to the critic as a gift. But when his scheme backfired, the reporter lost more than his chance at revenge. He had tainted his reputation and his career.... [read more]
Keep emotions in check if fired
In February, my client Dave was fired. He never saw it coming. "When I got to work, my boss and HR (department) asked to meet with me. I was told that the decision had been made to terminate my employment. I was shocked," he told me. " I was sent home in a cab and told my personal belongings would be shipped to me. I wasn't allowed to say goodbye to anyone." Dave had been employed as a sales agent with a large manufacturing company for five years and had felt his career was finally turning the corner.... [read more]
Letters of Reference are an Invaluable Tool
For many of my recently dismissed clients, a good letter of reference is invaluable to finding new employment. In fact, when I represent employees, I customarily request a supportive letter of reference in my initial negotiations with a company and, many times, I take an active part in drafting the reference to my client’s satisfaction.... [read more]
Lyng on resumes
Recently, one of my clients consulted me about its employee, Jane, who was found lying on her resume. The problem for my client was that Jane’s delinquency wasn't discovered until after she was hired. As the story goes, Jane had stated on her resume that she was still working for a large computer company and wanting to avoid a relocation, she was looking for a new job. In fact, Jane had been fired months earlier. Jane also had stated that she had a diploma in animation but again, Jane had been less than honest. Jane's luck eventually ran out when the company learned about her dishonesty. It fired her immediately for just cause. ... [read more]
Performance appraisals can cut both ways
Frequently, I’m consulted by employers seeking to dismiss their habitual underperformer. My usual prescription for a tidy divorce: gather ammunition and create a paper trail documenting any and all allegations and concerns.Typically, this is accomplished by a series of negative performance appraisals. If the employee then wishes to go to war, he’ll have a mountain of evidence to overcome.... [read more]
Perils of Fixed term contracts
For many employees, the perils of fixed term employment contracts are clear and unambiguous. Unfortunately for Frank Flynn, when it came to his employment contract, a little bit of clarity amounted to a whole lot of doubt. ... [read more]
Plant manager sacked for lewd behaviour
Office romance is a tricky business. For Scott Hall, the Garden of Eden simply had too many forbidden fruits. Having been hired to manage logging company Boise Alljoist’s New Brunswick operations, forestry dynamo Scott Hall's career had reached its peak. But life can be lonely at the top. For Hall, confusing office romance with leadership and management became more than a forbidden dalliance — it was the recipe for disaster.... [read more]
Pregnancy and Parental Leave Raise Legal Issues
What are you rights when it comes to a pregnancy and parental leave? Recently, I received an e-mail from a Metro reader asking this question. In the correspondence, she explained that after returning from maternity leave, her employer informed her that the company had restructured during her absence, and as a result, she would now have to accept a different job than she previously held. The new job, she noted, was a significant demotion in terms of status and responsibilities. Yet, when she complained, she was told that she either had to accept it or resign. ... [read more]
Salesman's contract a lemon: Judge
In Bradley Gallagher's case, a little bit of clarity would have gone a long way. Making ends meet selling used cars, Gallagher never paid much attention to the calculation of his commission payments. But in 2003, Gallagher's car dealership demanded that he sign a shady commission plan or face his immediate termination. Having refused, the dealership said he resigned. In the end, the judge said Gallagher was the one who was sold a lemon.... [read more]
Saying No to the Boss has Consequences
Have you ever wondered what would happen if you just said “NO” to your boss? Although the thought has certainly crossed the mind of many employees, most won’t have the satisfaction to see it transpire. But not Dianne Roden and Karen Mottram. For these two employees, refusing a direct order from the boss became more than just a fantasy, it became their reality. ... [read more]
Suspensions Should be with Pay
FRI Corp wanted to teach marketing executive Christina Carscallen a lessen. But as FRI Corp learned, some lessons come with a very steep price. Angered by a botched trade show and a heated email exchange with her boss, FRI Corp chose to suspend Carscallen without pay. However, FRI Corp didn’t stop there. Carscallen was demoted, her flex hours withdrawn and just to rub a little salt in the wound, she was told she would have to share a cubicle with a subordinate. ... [read more]
Termination for Incompetence is a Difficult task to Prove
All-star Sales Manager, Jack Bogden didn’t know what to think. He had been a paradigm of achievement for Purolator Courier Ltd. and was praised by those who worked with him. But for Bogden’s boss, Pat Capparelli, the proof was in the pudding. Confusing excellence with mediocrity, Caparelli’s opinion of Bogden was nothing more than inconsistent. But when the Judge heard all the evidence, Caparelli was the only one that was found erratic. ... [read more]
The Fine art of Investigating Pays Dividends to Employers
The workplace should be concerned with work and not the “art of war”; however, in many ways, employment law disputes inevitably become a chess match, in which each side looks for the next fatal blow. I’m often asked what I enjoy most about representing both employees and small businesses in workplace disputes, as this practice is commonly seen as an exception, not the rule. My response: by walking in my opponents’ shoes, I can anticipate their next move. ... [read more]
The myth of 2 weeks' notice
One of the most frustrating aspects of my practice is that when advising employees about how much their termination package will be worth, everyone thinks they are an expert. Many times, my clients have been given poor advice from friends, neighbours, their real estate lawyers or anyone else purporting to know the law in this area. Fortunately, however, not all “experts” are created equal. ... [read more]
Top 5 don'ts when recruiting an employee
When does an employment interview involve more than just landing the job? Good talent is hard to find, especially with the unemployment rate at a generational low. With the scales of supply and demand tipped heavily in the employee’s favour, it’s no wonder many companies are looking to their competition to recruit the next big rainmaker. But, to those companies a little too eager to close the deal, and to those over-ambitious employees a bit too willing to jump ship: stay mindful of the following 5 recruitment mistakes so that you can keep your checkbook in your pocket and your business/career on course.... [read more]
Wallace Damages
Unfortunately, I’ve learned that we cannot always expect others to treat us fairly, reasonably and decently. But when it comes to being terminated from a job, employers are legally required to behave in such a manner. A 1997 Supreme Court of Canada decision — which is considered to be one of the most influential employment law decisions to date — established the standard requiring employers to treat employees with good faith and fair dealing at the time of their termination.... [read more]
When can an employee's paycheck be docked
Blamed for stealing over $1,300 in cash from his till, lifelong bartender and cashier, Mark Hall, was immediately shown the door. Sadly, with only enough money left to pay his rent, Hall was totally dependant on his final paycheck just to get by. But when Hall’s employer docked his pay for the missing funds, surprisingly it was Hall who had the last laugh. As Hall’s employer learned, docking a former employee’s paycheck can be more than just costly, it can be illegal. Hall worked as a bartender in Haliburton, Ontario. He was fired after his employer discovered a shortfall of over $1,300 from two busy shifts that he had worked. Hall eagerly awaited his final paycheck but much to his dismay, it came up short too; to the tune of the $1,300 his employer claimed he had taken. ... [read more]
Worse job may be case of constructive dismissal
Are you doing the job you were hired to do? Or are you doing something completely different? Have the terms of your employment agreement been changed without your permission?If so, you may have been “constructively dismissed,” whether you realize it or not. And you may be entitled to damages. Constructive dismissal occurs where your employer unilaterally implements a fundamental change to the essential terms of your job. When this happens, the job you are performing is significantly different than before, and your employer may therefore be deemed to have dismissed you.... [read more]
Wrongful Resignation Proves Costly
Have you ever heard of a wrongful resignation? Corey Snider hadn’t — and it cost him to the tune of $10,000. Discontent with criticisms over his work performance, sales representative, Snider decided to take a long walk – He walked right out of the office and never came back. Snider handed in his resignation letter a few days later, thinking he was doing the company a favour by making it official. However, Snider got sued; and at that point, doing favours for the company was the last thing on his mind. ... [read more]