Employment Law Article Topics

Wrongful Dismissal Articles

"Cascade of excuses" led to wrongful dismissal
Canadian courts continue to consider proportionality when judging whether discipline was justified. Defying instructions from your employer can be cause for dismissal - but only if the instructions are reasonable. ...[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]

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 - 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]

Avoid paying severance to ill employees and pay the price
Seldom will a temporary illness justify dismissal. But what happens when a sick employee may 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? According to a recent Alberta case, employers must tread carefully with injured employees or pay the price of their severance. ...[read more]

Be careful when working for a competitor
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 loyalty often lies with the relationships that are built and the key employees who have built them. ...[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 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]

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]

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]

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]

Calling employees as contractors and the law
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]

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]

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]

Company's failure to properly investigate cost it the case
Today, much of the workforce views itself as being bullied or harassed. Often it is for a good reason. However, as harassment is often in the eyes of the beholder, many companies have become complacent, satisfied to have employees police themselves. As a recent Ontario case illustrates, to do so flirts with a significant lawsuit....[read more]

Computer Misuse at work
Employees often get what they deserve. When they work hard, they get a bonus. When their service is long and meritorious, they may get a good severance package or pension. When they knowingly break their employer's rules, however, they often are fired for cause and get nothing at all. This is the tale of two employees who misused their computers at work and the consequences they reluctantly faced....[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]

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]

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]

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]

Employees should think twice
Here are the top five mistakes employees can make at work....[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 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
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 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]

Employment Contracts significantly limit employee's rights
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 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]

Filing a Complaint with the Provincial Ministry of Labour
The Ministry's hotline, which fields calls from prospective complaints, should explain only what the Act says and how it may have been interpreted in the past. There is no mandate to provide recommendations, or worse, to provide advice. Yet it happens anyway when some of the Ministry's representatives habitually blur this distinction. When they do, the public's interests may be subverted. ...[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]

Get it right before pulling the trigger
Employee misconduct may be present but in Canadian workplace law it seldom matters if an employer does not act fairly towards its employee. UPS learned this the hard way in its recent termination of a long term employee. ...[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]

Have you been wrongfully dismissed?
Here are seven questions to ask yourself if you’ve recently been dismissed....[read more]

How not to fire an employee
This decision serves as a reminder to employers to tread carefully when dismissing employees or risk facing additional punitive damages that the courts will award when an otherwise garden-variety termination is complicated by unfounded allegations of employee misbehaviour. ...[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]

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]

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]

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]

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]

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]

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]

Misusing the computer at work
Employees often get what they deserve. When they work hard, they get a bonus. When their service is long and meritorious, they may get a good severance package or pension. When they knowingly break their employer's rules, however, they often are fired for cause and get nothing at all. This is the tale of two employees who misused their computers at work and the consequences they reluctantly faced. ...[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]

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]

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]

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]

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]

Owning a business within a business is not dispositive
Ensure that there is a clear separation between the employer's business and the contractor. Permit the contractor to perform services for others and to maintain genuine discretion over how and when the job is performed. Even an airtight independent contractor agreement will not be reliable unless the parties stick to what it says....[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]

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]

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]

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]

Pregnant employees entitled to deference
Jessica Maciel was crestfallen. Fired on her first day of work after disclosing she was pregnant, Maciel was not about to go quietly. Just out of school, Maciel secured her first full-time job as a receptionist for Fashion Coiffures, a Toronto area beauty salon. Unbeknownst to the salon, when it hired Maciel she was four months pregnant....[read more]

Profanity in the Workplace
Canadian employers often assume that any misconduct is ample cause to fire their employees. They are generally mistaken. This is the story of one employer who learned this lesson the hard way. ...[read more]

Recapping 2009's developments
As we look back on a busy year, we all received some good advice, but often never got around to following it. Since the holidays are a time to reflect, I'm giving you a second chance. Here is some advice for employees in 2010....[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]

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]

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]

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 termination 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]

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]

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]

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]

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]

Suspensions Should be with Pay
FRI Corp wanted to teach marketing executive Christina Carscallen a lesson. 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]

Taking Clients from a past employer
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]

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]

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 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]

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]

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]

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

Over beers and a handshake, the two friends agreed that Carmichael would become Mantis' new General Manager. However, their relationship would soon sour.

Within a year, Carmichael's expenses and outstanding bonuses made him Mantis' second biggest account payable. Wanting to get paid and tired of getting the run-around, he threatened to quit. Jakubowski did not address the threat. ...[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]

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 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]

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]

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]