 |
Damages for Bad Faith, Mental Distress and Personal Injury Articles
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 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]
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]
Boss' criticisms can be perilous
Today, much of the workforce views a manager's criticism as "bullying" or "harassment". As toxic bosses have become a greater liability, their employees no longer call their doctors seeking a note for a leave of absence. Now they call their lawyers. But as harassment is often in the eyes of the beholder, when will a tough boss justify a successful lawsuit? ...[read more]
Calgary stock broker yields poor ROI
Before Keays, employers 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 that case employers went from strength to strength. A recent Alberta Court of Appeal decision illustrates why....[read more]
Changes in pay
Employees are empowered to reject real changes to their jobs since, even in a tough economy, employers cannot simply force significant pay cuts or adverse working conditions on their employees. Importantly, in light of this case, employees do not even need to leave work and go to court in order to protest these types of changes. One strategy is now to stay and sue for damages....[read more]
Discrimination
Employees and employers make all types of wrong assumptions about the law. Seldom do their "perceived" rights exist. Often they rely on rules that have long been rejected by the courts and legal doctrines that are now invalid. Sometimes they just ignore their lawyer’s advice. As one Ontario company just learned, however, ignorance of the law is no excuse....[read more]
Do's and Don'ts of Workplace Law
Employees are often the authors of their own misfortunes at work. Few take advantage of laws that are construed in their favour. Fewer will challenge their employer's decisions, however unjust. Most will just complain. But - if you have an inclination to fight back, here are some do's and don'ts.
...[read more]
Employee Bonuses
Employees don't always get the bonus they deserve. Seldom will this amount to a successful lawsuit.
Veteran investment banker Kenneth Mathieson was well rewar ded in his good years. In 2005, he earned a bonus of $1.1 million. However, when his employer, Scotia Capital, decided that he deserved only $360,000 in 2006 - the lowest bonus he had ever received - Mathieson believed the bank was attempting to force his resignation. He wasn't about to go quietly....[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]
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 Law Basics
The five most frequent files appearing on my desk – and in court dockets....[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]
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]
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]
Insufficient Investigation leads to Damages
What happens when an employee is assaulted by a supervisor? As an Ontario court just ruled, when push comes to shove, the employer may also be responsible. ...[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]
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]
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]
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]
Medical notes are not dispositive
Employees dismissed for underperformance never go quietly. Often they complain that the cards were stacked against them or that their employer's decision was somehow unfair. But what about an employee who claims he was fired because of discrimination? Sean Carter tried this card at a recent human rights hearing and learned that proving discrimination is more difficult than he thought....[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]
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]
Pay the price if not paying severance to ill employees
Ill or disabled employees often receive protections that few others in the workplace are afforded. But what happens when a sick employee can never return? Can employers discard employees they view as festering on their disability insurance or must they keep their jobs available for an indefinite period of time? ...[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]
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]
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]
There is more to an employment law 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]
Tribunals cause for Employers concern
Canadian employers have historically taken an ignorant view of human rights tribunals and their often extraordinary decisions. But that may be quickly changing. Because of sweeping changes to human rights legislation and left-leaning adjudicators directed to interpret remedial legislation, such as human rights laws, in a broad and inclusive manner, employers should be very concerned. Here are some of the reasons why....[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]
Workplace 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]
Workplace misconduct
Canadian employers continue to allege cause for dismissal based on any perceived wrong. Although, in cases of serious misconduct such as theft or fraud, they are justified, in most cases they are not. Judges continue to require employers to show that they investigated misconduct, considered any mitigating circumstances and first offered coaching to any employee they wish to fire without notice. Ultimately the punishment must fit the crime....[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]
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 Dismissal not clear cut
Six factors to consider if you’ve recently been dismissed....[read more]