 |
Severance Packages Articles
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]
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]
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]
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]
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]
Blunder dismissal and pay the price
Despite having just lost her job, Kelly Stowar must have been elated. As an administrative employee, Stowar was not entitled to more than a few weeks' severance. Instead, however, she was given a letter by her former employer, Telehop Communications, stating that she would be paid five months' salary. Stowar signed her name on the space provided, indicating she was satisfied with the contents of the letter, and left the Toronto area office to go home.
A few days after signing the letter, Stowar returned to Telehop's office to return some of the company's property that she still had. She was met by Telehop's human resources manager and called into a meeting. Stowar was told that the company had made a "mistake" and that she would only be receiving three weeks' termination pay, not the five months that she was initially offered. She was then asked to sign a release, indicating that she agreed with the revised offer. Stowar refused, claiming she had agreed to a deal for five months' pay just days earlier.
...[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]
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]
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]
Contractors
It's workplace law's newest phenomenon: employers, happy to unburden themselves from the various costs and liabilities associated with their employees, increasingly retaining "contractors" to perform the same services their employees did before. Often their former employees are transformed into contractors and these "contractors", content to pay less taxes than they did when employees, are not about to complain. However, this arrangement is often a fraud. ...[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]
Court’s judgment a sign of the times
Employers cannot adapt to new economic constraints at the expense of fundamental employee rights....[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]
Drafting employment contracts
Employers often take a kitchen sink approach to drafting employment contracts. They bargain for excessive protection, no matter how junior or administrative the employee. However, in seeking such protection, they sometimes get none at all. ...[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]
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 have no right to privacy when using an employer's computer.
How do you win in court? It starts with selecting the proper lawyer. But beware - not all lawyers' interests are aligned with those of their clients. Here are four cautionary tales that I've gleaned from the employment law trenches....[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 think twice
Here are the top five mistakes employees can make at work....[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
It's possibly the biggest mistake an employee can make: requesting a written employment contract or worse, agreeing to one without understanding its terms. ...[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 Law Basics
The five most frequent files appearing on my desk – and in court dockets....[read more]
Employment Law Basics
Most employees cling to beliefs about workplace rights they gleaned from media, friends or researching on the Internet. But many of these "perceived" rights often do not exist. Here are some of my favourite misconceptions....[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]
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]
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]
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]
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]
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]
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]
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 Centra Windows Ltd. recently learned, sometimes workers are not bound by the agreements they have agreed to....[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]
Matter of "just cause"
Too often employees fail to pick their battles. Just ask Gary Gordon. By refusing to take on additional responsibilities, he lost his job - and recently, he lost his case against his ex-employer.
...[read more]
Mistake resignation and pay the price
Following a confrontation with another employee, Barry Upcott stormed into the human resources office at work and suddenly proclaimed that he was finished at his job. When he then handed in his keys and swiftly left the premises his employer, Savaria Concord Lifts, believed that Upcott had resigned. ...[read more]
No age limit on employees
Canadian workplaces have adapted to the ban on mandatory retirement. Many have found ways to subvert the legislation by creatively finding ways to transition older employees into retirement....[read more]
No such thing as a "free" consultation
People often get exactly what they pay for. This is as true in law as it is in life. Here is one story that should make employees pause when they are offered a "free" consultation with a lawyer.
...[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]
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]
Provincial Ministry of Labour may go too far
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 provincial 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. ...[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]
Resignations not clear cut
After a tumultuous nine-year relationship with his boss, Juan Moreno may have finally had enough of his job. But when he left the Oakville, Ontario offices of Comfact Corporation after another argument, he didn't think it would be his last day of work. Moreno hadn't been formally terminated, and he didn't think he had resigned either. When he was accused of quitting, however, Moreno wasn't about to go quietly. ...[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]
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]
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]
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]
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]
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]
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]
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 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]
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]
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]
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]
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]
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]
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]
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]
Workplace Changes
This 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 that 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....[read more]
Workplace Law
Employees are often the author of their own misfortune. Despite my cautionary writings, they routinely sign contracts replete with unfavourable terms. By doing so, they unknowingly agree to be eliminated with minimum notice, demoted, or banished to far away jurisdictions, see their salary slashed and prevented from competing with their employer following their departure - all with legal impunity. Just as often, however, Canadian courts are reluctant to enforce these agreements for a variety of reasons. ...[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]
Wrongful Dismissal not clear cut
Six factors to consider if you’ve recently been dismissed....[read more]