en-us  
Brooke Haddock’s career as a seafood department manager for a Thrifty Foods chain of grocery stores in B.C. was sailing along smoothly until he separated from his wife.

Haddock then turned to alcohol as financial problems and stress from the failed marriage mounted.  It clearly affected his performance.

When Haddock continued to show up late for work, he was suspended for four days.  When his performance still did not improve, he was warned that his job was in jeopardy and that, if his poor behaviour continued, he would either be fired or demoted. 

However, Haddock’s problems with lateness continued and, after his drunkenness made other employee’s uncomfortable at a softball tournament, Thrifty had enough.  Haddock was permanently demoted from manager to a clerical position, correspondingly with about 15 per cent less pay.  Haddock did not report to work.  

The legal doctrine of constructive dismissal provides that an employer cannot unilaterally change any important condition of an employee’s job, such as job title or pay, without his or her agreement.  Since Haddock was demoted and his pay reduced, he opted to sue. 

In deciding whether to side with Haddock, the court determined that his 15 per cent pay cut was not, by itself, a material change to his job but when combined with his demotion, he had indeed been constructively dismissed. 

However, it was only a pyrrhic victory.  Haddock’s damages were almost entirely offset because he failed to accept the clerk’s position that Thrifty offered him.
 
The court’s decision may be surprising but it makes sense.  Even though Haddock was constructively dismissed, he did not have a reasonable reason to refuse the lesser job.  The irony here is that if he would have first tried the clerk’s job and found it humiliating, there likely would be no offset.   


• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1090472 Tue, 07 Feb 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1090472
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. As the Court reasoned, employees were particularly vulnerable at the time of dismissal and in need of additional protection. 

But in the landmark decision in Honda nearly 11 years later, the Supreme Court considerably rewrote its own law. In that case the Court found that, unless there was evidence of some actual or physical harm stemming from a dismissal, employees should no longer be compensated for their mistreatment. Many employees were left shaking their heads and since this time, it has been unclear what, if any, damages they should receive if they are dismissed “in bad faith.” Fortunately, a recent case seems to clarify the law. 

When Sergio Coppola was dismissed from Capital Pontiac Buick in Regina, he was told the dealership was eliminating his position and that, since he had the least tenure among his group, he was losing his job. However, when Coppola tried to start his own business a few months later, his prospective business partner was told by one of the staff at Capital Pontiac that Coppola was fired because a car had gone missing and hinted that Coppola was at fault. 

The allegation that Coppola had engaged in misconduct affected him greatly. Coppola’s new business venture was delayed and he claimed that he was emotionally devastated, although he never went to see a doctor. Coppola sued his old employer for wrongful dismissal, based on the false allegations — and recently he was awarded additional damages based on the manner of his dismissal, even though there was no precise manner to calculate his alleged loss.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1084576 Tue, 31 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1084576
However, this arrangement is often in dispute. Government agencies and courts are apt to find that many contractors are truly employees. No surprise there as the word “contractor” seldom represents more than a label. What really matters is how the parties behave.

So when is a contractor actually an employee?

Despite signing an independent contractor agreement and incorporating his own company, Gordon Braiden was not self-employed.

Braiden, a sales agent, worked full-time and exclusively for La-Z-Boy, who controlled which products he sold, how he sold them, where his sales territory was and what promotional methods to use.

It did not matter that Braiden had incorporated his own company, according to an Ontario court, because ultimately he was part of La-Z-Boy’s business, not his own.

Similarly, real estate agent Elizabeth McKee was an employee even though she had signed a contractor agreement, had her own incorporated business and invoiced her principal for commissions.

Following a fallout that cost her job, McKee sued arguing that she was an employee. The fact that she operated a business within her work for the company did not mean she was a contractor, nor did the fact that she hired and supervised her own staff. Since she worked for 18 consecutive years exclusively for her employer and had become an integral part of its business, the court declined to uphold the contract and characterized her as an employee. She was then awarded nearly half a million dollars in severance.

Labelling yourself as a contractor is not dispositive, even if your employer agrees. Courts and tribunals will always consider the true nature of the relationship to determine how the parties actually behaved.

If you want to be employed as a contractor, then do as follows:

Ensure that there is a clear separation between the employer’s business and your own. Ensure you are permitted to perform services for others and to maintain genuine discretion over how and when you perform the job. Even an airtight independent contractor agreement will not be reliable unless the parties stick to what it says.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1083623 Mon, 30 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1083623
However, this arrangement is often in dispute. Government agencies and courts are apt to find that many contractors are truly employees. No surprise there as the word “contractor” seldom represents more than a label. What really matters is how the parties behave.

So when is a contractor actually an employee?

Despite signing an independent contractor agreement and incorporating his own company, Gordon Braiden was not self-employed.

Braiden, a sales agent, worked full-time and exclusively for La-Z-Boy, who controlled which products he sold, how he sold them, where his sales territory was and what promotional methods to use.

It did not matter that Braiden had incorporated his own company, according to an Ontario court, because ultimately he was part of La-Z-Boy’s business, not his own.

Similarly, real estate agent Elizabeth McKee was an employee even though she had signed a contractor agreement, had her own incorporated business and invoiced her principal for commissions.

Following a fallout that cost her job, McKee sued arguing that she was an employee. The fact that she operated a business within her work for the company did not mean she was a contractor, nor did the fact that she hired and supervised her own staff. Since she worked for 18 consecutive years exclusively for her employer and had become an integral part of its business, the court declined to uphold the contract and characterized her as an employee. She was then awarded nearly half a million dollars in severance.

Labelling yourself as a contractor is not dispositive, even if your employer agrees. Courts and tribunals will always consider the true nature of the relationship to determine how the parties actually behaved.

If you want to be employed as a contractor, then do as follows:

Ensure that there is a clear separation between the employer’s business and your own. Ensure you are permitted to perform services for others and to maintain genuine discretion over how and when you perform the job. Even an airtight independent contractor agreement will not be reliable unless the parties stick to what it says.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1078659 Tue, 24 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1078659
Alleged constructive dismissals:

Many employees, unhappy with their jobs and their employers, will conjure up perceived workplace injustices in an effort to leave and collect severance. Some of these claims are meritorious —many are not. Worse, in a number of cases, these employees have already received another job offer, and therefore, have no right to compensation no matter how long or commendable their service.     

Mitigation:

The single biggest source of employer mistrust with employees is with those who are no longer employed but are still on their payroll receiving severance — and for good reason. Ex-employees who are receiving severance are required to report any job offers or any income they receive, which would then eliminate further payments. Many do not and they usually get away with it.

Harassment claims:

Today, a tough boss can no longer criticize employees without fear of a human rights or harassment complaint.

This is because liberalized human rights laws and employee-friendly human rights tribunals often extend legal protection to even superficial harassment claims. Employees, aware of employers’ fears, can illegitimately assert they were “harassed” when something did not go their way and they frequently do, as a means to achieve a right or benefit they did not otherwise deserve.  

Loyalty:

Most employers believe that unhappy ex-employees will stop at nothing to derail them. However, the biggest workplace conspirators often come from inside.

These employees strategize about competing but while still employed. They steal confidential data and take steps to cripple their company — and then swiftly leave for a rival.
 
Malingerers:

If you ask just about anyone what the biggest problem with workplace law is today, most will invariably announce that disability cheaters are at the top of their list.

Although they are few in their numbers, their scams are often magnificent ones as they find ways to get paid, without ever having to go to work.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1073051 Tue, 17 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1073051
Alleged poor performance:
Employers hate paying employees not to work for them. But this is exactly what the law of severance requires. To fire an employee in Canada, they must be paid fair severance. However, employers attempt to circumvent this law by “building” a case for poor performance, hoping it will reduce their severance obligation or eliminate them altogether. Most of these attempts will fail. Unless an employee is objectively incompetent, courts do not award less severance for alleged poor performance. 

Bonuses:
Similarly, why would an employer reward an employee with a bonus, if he is about to be fired? Most will not, claiming that the bonus was a matter of discretion. However, seldom are bonuses truly discretionary, no matter how they are described. If there is a reasonable expectation for payment, based on past practices, it must still be paid.    

Overtime:
Employers encourage and then reward employees who work around the clock. But then they hate to pay them for it. One common trick is to pile on so much work that the employee has no choice but to stay late and since they were not specifically asked to work overtime, employers argue they have no entitlement to extra pay for it. Unaware that employment legislation requires overtime payment, without exception, for any overtime hours actually worked, regardless of the reason, many employees are routinely underpaid.    

Non-competition agreements:
Most employers now include these in their contracts, no matter how junior or administrative the employee. The problem is that they expect employees to comply with restrictions, such as not working in their industry for long periods of time, while refusing to pay them severance during this period. For a court to uphold a post employment restriction, it must agree that it is fair. Employers cannot expect employees to stay at home, without compensating them for that time.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1067342 Tue, 10 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1067342
In light of these multiple failures, here is an offering of my top dos and don’ts for employees in 2012.  

Document disputes
Written documents do not lie. People do. If you find yourself in a workplace dispute, take steps to document and then preserve your version of the events. Most court cases are resolved based on credibility so do not leave yours to memory.  

Employment contracts
The single biggest problem in workplace law is that employees quickly sign contracts that reduce or eliminate their legal rights. Courts uphold these agreements even if they are one-sided, so avoid signing them or at least negotiate on the more unfavourable terms.
   
Off-duty conduct
Many employees believe that off-duty conduct cannot justify discipline. They are mistaken. Off-duty conduct that, in one way or another, demonstrates a revelation of poor character or is injurious to an employer’s interests can result in dismissal. Similarly blog postings, social networking and emailing among coworkers are likely being monitored. Be careful what you write, otherwise it may follow you back to your desk.
 
Policy manuals
These documents are neglected by employees, often to their detriment. There were a number of court cases in 2011 that were ultimately decided in favour of employers on the basis of obscure language in their policy manuals, without any regard to what was otherwise fair. Read your policy manuals carefully.  

Challenge workplace changes
An employer cannot unilaterally change any important working conditions without your consent. Many try to anyway.  If you do not approve of the change, then you must protest it. By doing nothing, you will be deemed to agree.       

Don’t tolerate abuse:
2011 saw many high-profile harassment cases played out in the media and the courts. While judges may have previously been unsympathetic or reluctant to become involved in harassment claims, this is no longer the case. Employees with legitimate grievances should not remain ‘in the closet’ with their claims.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1062047 Tue, 03 Jan 2012 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1062047
So read the press statement released by Research in Motion after last week’s news story about two of its (now former) high-flying executives who were fired for excessive drinking on an Air Canada flight.

Although the story initially raised eyebrows because the plane was diverted and forced to land due to their conduct, it also poses an interesting workplace law issue because the employees were fired by RIM for their conduct — even though it occurred away from the workplace. 

Generally, employees’ conduct outside of work is immune from discipline. But, in some circumstances, an employer has a right to interfere:

• When an employer’s interests or reputation is jeopardized by an employee’s off-duty behaviour, this can be cause for immediate dismissal without pay. In the RIM case, the executives’ behaviour was immediately broadcast in the media and news, linking them back to their employer. Although RIM had no hand in their conduct, the negative publicity it faced as a result of the executives’ behaviour justified its reaction: a press release distancing itself from their actions and their prompt dismissal.           
• Criminal behaviour unrelated to the workplace but which injures or potentially injures an employer’s interests can amount to cause for dismissal. In one case, an employer successfully defended itself from a former employee who was charged with a crime, even though he was not yet convicted. The court sided with the company because of the potential damage to its reputation.   
• More recently, an Ontario court found that an employee who occupies a heightened position of trust has greater off-duty responsibilities to the employer. In that case, the employee was fired for harassing a co-worker away from work. The employee’s senior human resources position and the fact that he helped distribute harassment policies at work contributed to his failure at trial.
• In some cases actual damage to an employer’s reputation may not be necessary if there is a potential for harm. In a notorious Canadian case, a bank teller was fired after her employer learned that she was living with a convicted bank robber. She had done nothing wrong, but she was still in a conflict of interest.   

Where off-duty behaviour poses a workplace problem, it can follow you back to your desk.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1054500 Tue, 20 Dec 2011 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1054500
However, in another tale from the workplace trenches with an ending you would not expect, a court found that Chan’s resignation was actually a termination. 

Chan, the general manager of a busy Denny’s restaurant in Langley, B.C., had his fair share of problems with his supervisor, who had repeatedly criticized his performance. 

Although Chan had been well-regarded within the company, by May 2009 the tone and content of the communication from his boss led him to believe that he would soon be fired.  Matters came to a head when Chan was given the choice of being dismissed or resigning. 

For Chan, “saving face” was paramount, so he resigned rather than face dismissal. However, at the urging of another senior employee, Chan soon returned to his job. His content with his boss would not last long.

After another hectic day at the restaurant, Chan’s manager came to him once more and said that he could choose to resign or else he would be fired. 

Again, faced with the possibility of explaining his termination to prospective employers, Chan opted to resign.  He drafted a letter confirming his decision and left work. This time, however, although Chan’s departure was permanent, he was not about to go quietly. Chan recently sued Denny’s, arguing that the ultimatum he was given was tantamount to a dismissal.   

At a recent trial, the judge drew a clear bright line between an employee who voluntarily leaves and one who is told he will otherwise be fired. 

Here, although Chan’s statements and actions were consistent with an employee who wanted out, they were provided in the context of an ultimatum that he would be fired and in response to a boss who had tried to force his resignation once before. Chan was awarded wrongful dismissal damages and his legal costs. 

Although the results of this case may have been surprising, the law in this area is quite clear: Canadian courts are loath to uphold a resignation proffered under circumstances of pressure or an ultimatum and instead will usually find that the employee has been fired. 

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1048839 Tue, 13 Dec 2011 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1048839
Soon after his hiring, Balogun believed he deserved a significant raise.  However, according to his manager, his performance did not yet warrant more money.

The issue soon blossomed into a conflict.  Before a performance review, Balogun was told that there were concerns with his performance and that he would not receive a raise. This did not sit well with Balogun. According to the judge, he became so fixated on his salary that he paid little attention to concerns that were raised about his performance. 

During the performance review, Balogun was asked about his future at Deloitte. He swiftly replied that he was “out of here” before leaving the meeting and the workplace.  Believing that Balogun had just resigned, Deloitte sent him a formal letter, indicating that he had “quit.”    

After a recent trial, a judge found that Balogun had not yet resigned when he left the office. Although Balogun’s statement and actions could be consistent with a resignation, Deloitte failed to consider the context. When he left work, it was at the end of the workday, and Balogun was in a hurry to leave for the airport because he was beginning a vacation. In these circumstances, it was not clear whether Balogun was quitting, so by sending him a letter accusing him of resigning, Deloitte effectively fired him. Instead, Deloitte should have asked Balogun to confirm his alleged resignation in writing to eliminate any uncertainty. However, in my view, it was hoping he would never return.  Agreeing with me, the court awarded him damages for wrongful dismissal.      

Although Balogun won his case, by following these simple steps, the confusion could have been avoided: immediately protest a characterization that there has been a resignation, if you didn’t intend to resign and resist taking any steps that can be construed as voluntarily withdrawing from the workplace, until you can seek legal advice.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1042522 Tue, 06 Dec 2011 00:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1042522
Patterson saw matters differently. She had performed other part-time work outside of the bank and without any objection., and other employees had second or third jobs, which the bank did not oppose. 

When it came to her work as a part-time realtor, however, the bank decided to take a stand, arguing that by recommending financial services and products at the bank, Patterson could be in a “potential” conflict with her work in real estate. Patterson was told to abandon her work as a realtor otherwise she would be fired. 

But Patterson was defiant, refusing to consider searching for another non-conflict position at the bank and refusing to resign.  Therefore, the Bank felt it had cause to terminate her and it did, without any severance. Patterson was not about to go quietly, suing the bank and claiming that its ultimatum was unreasonable. 

At a recent hearing, Justice Bryce Dyer agreed with the bank and dismissed Patterson’s claim. According to him, Patterson’s refusal to abandon her work as a realtor once instructed to do so amounted to disobedience that was serious and not capable of being forgiven.  The key to his decision, however, was not that Patterson had performed work as a realtor but that she was told to give it up or lose her job. Since this direction was reasonable, the bank had done nothing wrong.

This case illustrates two of the most prevalent principles in workplace law.  First, the judge you happen to draw often makes a difference in the final outcome. Here, Justice Dyer viewed the bank’s directive as reasonable but that does not mean that another judge would. Second, Patterson was given a choice to abandon her outside work or keep her job. In my experience, had the bank just terminated her without advancing this option, she would have been cashing settlement cheques by now.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1036469 Tue, 22 Nov 2011 20:41:55 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1036469
Probationary periods
New employees are not ‘probationary’ as a matter of law.  They are only probationary if they agree to it in a contract.  If they have, employers are then given the right to dismiss for reasons that would otherwise be insufficient and worse, by providing only minimum notice or pay, or often less.

Termination clauses
Without any language surrounding termination in the contract, employees are entitled to ‘fair’ severance upon their termination based on how long it would take to find another job.  However, employers often draft contracts to provide employees with less than what is fair.  Why would anyone to agree to this?  Because they do not realize these terms can be negotiated or sometimes refused.   

No contractual changes
Can the job be modified or changed?  Once the job begins, employees can refuse any significant changes that negatively affect them, such as demotion or even reduced pay – unless they have agreed to a contract that permits it.   

Post-employment restrictions
An employee's only duty upon leaving a company is to keep information or trade secrets confidential.  That is unless a specific post-employment restriction is written into a contract.  If the contract is properly drafted, employers can prevent employees from working for a competitor, or soliciting clients or former colleagues upon their departure.

Post-termination income
Contracts can deprive employees of the right to any compensation other than severance following their termination. Without such language, courts can imply that an employee is entitled to bonuses, commissions, stock options and profit sharing, as if the employee had still been employed.

What should employees do? First, review any new contract with a lawyer and don’t be reluctant to renegotiate terms.  Second, challenge the enforceability of these contracts where the facts present that argument. I have won in court by raising the inference that a contract was signed without proper consent — such findings are not exceptions.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1031895 Tue, 22 Nov 2011 20:41:55 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1031895 “Lawyers are the only persons in whom ignorance of the law is not punished.” - Jeremy Bentham (1748 - 1832)

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 can be an overwhelming task.  Here are three cautionary tales that I’ve gleaned from the workplace law trenches.   

Advertising
A lawyer’s search engine rankings have nothing do with his or her legal skill.  Rather, Internet-based advertising allows lawyers to pay for and then snatch up high rankings on Google that are not indicative of the quality of the lawyer or her firm. Similarly, there are no rules limiting lawyers without much experience in employment law from professing that they practise it, on their websites and in the media, and they often do. For instance, Toronto’s Yellow Pages has ads for 42 lawyers who allegedly practise ‘wrongful dismissal’. However, many of those same lawyers appeared when I searched for ‘personal injury lawyers’, which wasn’t surprising at all. The reality is that there are few exclusively practicing employment lawyers. Most just dabble in the area, despite advertising otherwise. If you need a workplace lawyer, inquire what percentage of the lawyer’s time is spent solely on workplace law matters — and don’t pay for his or her education.  

Free consultations
Some lawyers advertise ‘free’ consultations. These can be a sham. A free consultation is usually nothing more than a bait and switch tactic, designed to get you in the door and then convince you to spend money for any substantive work performed afterward. In law, like in life, you will often get exactly what you pay for. If you need good advice, it will not come for free.   

Oral agreements
The biggest problem that most people face with lawyers is their billing practices. This is because the regulatory bodies that oversee lawyers have few restrictions governing how they charge for their work.  As a result, lawyers are often left to their own devices, charging clients based on any combination of their time spent or the result obtained, whichever will suit their purposes better.  In effect, these lawyers will have it both ways. If asked, a lawyer should predict to the best of his or her ability the potential costs of your case. Then confirm that arrangement in writing. 

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1024537 Mon, 14 Nov 2011 21:06:04 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1024537
Happily employed for more than 17 years, my client received an unsolicited phone call from a headhunter encouraging her to interview for a more senior role at another company. 

Following a series of interviews where all of the basic terms of the job were discussed, including salary, title and starting date, my client was offered the job.  She then resigned from her current position.   

However, as is often the case, the headhunter later forwarded an employment contract containing some language that had not been discussed. 

This was the first problem.  Unless an employment offer is made conditional upon signing a contract, it is too late to later send one, especially one with punitive terms. 

Here, the contract contained a clause permitting either party to end the relationship with a minimum period of written notice. 

However, since she was being recruited away from a long-term job, she needed at least a reasonable guarantee, which is the opposite of what she was being provided.  When my client expressed her reluctance to simply sign off on the contract and instead asked to meet with a lawyer, the headhunter accused her of being difficult. 

Even my client, a human resources neophyte, immediately realized that something had gone terribly wrong. 

She tried to negotiate over the contract, but each time she was either cautioned that she was haggling over “minutiae” and told that the offer would be withdrawn or given what could only be described as legal advice about the contract that was possibly negligent or, at least, plainly wrong. 

Worse, the headhunter proclaimed that she was being confrontational and that a lawyer was not required.  That is when she finally called me.

Although her case is ongoing, there is at least one important lesson to be learned: Not all headhunters and recruiters are impartial advocates, so do not assume that they are always acting in your best interests. 

Here, this individual would have said absolutely anything not to jeopardize his own commission — at the expense of my client’s welfare.    

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1018243 Mon, 07 Nov 2011 19:14:07 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1018243
Following her termination, an individual contacted the Ontario Ministry of Labour, seeking some 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.

The individual planned to contest her dismissal and so the representative immediately encouraged her to file a complaint.  This was the first error.  Although the Ministry enforces the provincial legislation, it cannot provide a remedy for more significant claims for wrongful dismissal since most of those claims generally exceed the scope of the legislation.  

As well, even though the Ministry could easily address and then remedy the complaint, this was not the problem.  It was that once it has taken steps to do so, an individual loses the right to later file a wrongful dismissal claim in court.  Here, since this person's damages were in excess of the statutory minimum, the bulk of her damages then would be relinquished — an issue that most employment lawyers would spot as a matter of course.

The Ministry has many safeguards, but they are not always effective.  No surprise there.  After most complaints are made, the Ministry mails the claimant a standard form letter explaining that if the complaint is not withdrawn within two weeks, the claimant will not be able to later file a wrongful dismissal claim.  However, since most people will believe, even if incorrectly, that they received "advice" from a Ministry, they are unlikely to withdraw their complaint or later pay for a lawyer's time to obtain a second opinion.  The result is that they are then stuck with their original claim.

This example is not an exception.  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 the general public or some of the Ministry's representatives habitually blur this distinction.  When they do, the public's interests may be subverted.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1011880 Mon, 31 Oct 2011 20:48:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1011880
To Chandran’s dismay, many of his subordinates accused him of making condescending remarks, embarrassing others and behaving like a bully.  Some claimed they contemplated seeking legal advice. Chandran asked for the specifics of those complaints so that he could defend himself, but his request was denied. 

Convinced that Chandran’s supervisory duties should be taken away from him because of the complaints, the bank gave him the option of choosing between two available non-supervisory roles.  Both alternative positions were at lower grade levels, although Chandran’s salary would not initially change. He was then warned that behaviour similar to that which led to the employee complaints would be grounds to terminate him for cause.

Chandran argued that either of the two alternative positions offered to him were tantamount to a demotion and that, based on the bank’s decision to discipline without first allowing him to defend himself, he had lost all trust in the bank. Chandran felt that he was entitled to leave but still entitled to severance.   

At a recent trial, the court sided with Chandran. It concluded that one of the distinguishing features of this case was the bank’s decision to impose discipline against Chandran without a proper investigation. Although Chandran may have engaged in the conduct that he was accused of, the bank’s failure to properly investigate effectively prevented it from relying on that conduct at trial. This fact, coupled with Chandran’s perceived demotion, justified his resignation with pay.  Chandran was awarded severance and his legal costs.   

The human resources lessons are clear: employers should pause before blindly accepting allegations of harassment and bullying at work. As harassment is often in the eyes of the beholder, even the workplace bully should have a full and frank opportunity to defend himself. To do otherwise flirts with a significant lawsuit.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/1005710 Tue, 25 Oct 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/1005710
Thomas McNeely was a “big deal” employee working as a senior executive for a weight loss company, Herbal Magic, when a group of investors came together in a bid to purchase the company. McNeely, a sophisticated business person, was actively involved in the negotiations leading to the acquisition of the company and maintained his interest in becoming its next president and CEO.  However, he was reluctant to invest his own money in the deal. 

To persuade him to put up his own capital, McNeely was assured by the other investors that he would be a long-term senior employee of the new company and a member of its board of directors. However, this was not put into writing. Instead, McNeely negotiated an employment contract containing an “entire agreement” clause, which is a contractual term prohibiting parties to the contract from relying on any oral promises not written into the contract itself.    

After the acquisition, McNeely was named president and CEO, but only for seven months, until he was fired and removed from the board of directors. Since McNeely was unable to withdraw his financial investment in the company, he sued, claiming that the promises made to him constituted an agreement apart from the contract he signed.

At a recent court hearing, the judge concluded that the clause in McNeely’s contract prevented him from relying on any promises or agreements not contained within the contract, despite the fact that the defendant did not deny making those statements. Accordingly, McNeely was out of luck. This decision highlights a critical mistake that too many employees continue to make.  They form decisions based on promises that are not reflected in the documents they are later asked to sign.  To avoid this scenario, do not blindly sign employment contracts without first having them reviewed and never be reluctant to renegotiate terms.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/999646 Tue, 18 Oct 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/999646
Paul Pereira earned a position as a senior employee. But he had a problem that ultimately cost him that job. 

Pereira, the general manager at a Staples Business Depot in Nanaimo, B.C., suffered from depression and a drug addiction. After stints on the company’s disability insurance plans, Pereira entered a treatment facility for his addiction hoping to return to work once he finished the program.

When Staples learned that Pereira intended to return, it told him not to go into his store until the staff could first be notified. 

Pereira agreed although he did not let Staples know where he could be found when he returned to Nanaimo a few days later. 

Since it could not find him and still had not heard from him in a few days, Staples wrote to Pereira telling him that it “assumed” that he had abandoned his job. 

Believing that he had been fired and that Staples would not reverse its decision, Pereira did not bother to contact Staples to dispute its assertion that he abandoned his job.  Instead, he decided to get a lawyer.   

At a recent appeal, Staples argued that the final letter it sent to Pereira called for his response if he truly intended to return to his job and because he just ignored it, he must not have cared.  However, the court disagreed. It was unreasonable for Staples to conclude that Pereira did not want to return since he had been late for only a few days and because he previously expressed a desire to return to his job.  Accordingly, Pereira did not abandon his job. Instead, he was wrongfully dismissed. 

This finding has broad implications as employers struggle to address the difficult situation where an employee is deemed fit to return to work but he has not yet returned. 

According to this case, assuming the employee no longer wants to return can be tantamount to a termination.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/993269 Tue, 11 Oct 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/993269
In 1992, Tom Mason signed an employment contract with his employer Chem-Trend Ltd., which contained a non-compete clause preventing him from dealing with its customers for one year after he left the company. 

Mason did not hear about the contract again until 17 years later when he was suddenly fired. 

When Mason learned that companies were hesitant to offer him jobs, fearful that they could be sued due to his non-compete clause, he went to court to ask that it be declared invalid. 

An Ontario judge concluded that the clause was clear and that Mason must be bound by what he signed. 

Employers collectively sighed in relief since most court cases strike down these clauses based on the courts’ interpretation of what is fair, and not what the contract actually states. 

Mason appealed and that is exactly what the Ontario Court of Appeal found.  Chem-Trend’s contract was drafted in a manner that was unfair to Mason and consequently, it was invalid.     

Similarly, the Alberta Court of Appeal recently refused to enforce the non-compete clauses in the employment contracts of three traders at the foreign exchange firm Globex. 

What is important about this case is not the fact that the contracts were struck down but the Court’s ruling that an employee who is wrongfully dismissed should be relieved from complying with post-employment restrictions, such as a non-compete or non-solicit clause regardless of how they are drafted. 

If this decision takes root in Canada, employers will be forced to pay fair severance to fired employees or risk having contracts thrown away.

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/986863 Tue, 04 Oct 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/986863
Kevin Johnson was a good worker.  He had not been given any warnings or notice that his performance was unsatisfactory.

In the spring of 2009, Johnson noticed he had not been called in for work.  His roommate who worked for the same company had been called back but Johnson hadn’t heard a thing.

When Johnson called in to find out what was going on he received an unexpected and painful surprise — his employer told him that because of his disability it would be too hard for him to work a long shift as he could not stand that long. 

But Johnson didn’t have a disability. He was overweight. Believing that this amounted to discrimination, Johnson filed a human rights complaint. 

He testified at the recent hearing that he had weight problems when he was hired and had gained weight over the course of his employment. 

However, he had never submitted a request for accommodation and did not believe that his weight negatively affected his ability to carry out the duties of his job.

The core issue was that Johnson’s employer believed that he had a physical disability, and treated him negatively because of it.  Human Rights legislation across the country protects not only against actual disabilities, but also perceived ones.

This means that all Johnson had to prove was that his employer perceived him to have a physical disability and treated him differently as a result.

In this case, Johnson’s employer told him flat out that he was not being offered work because of what they thought was his disability. 

This was a blatant violation of the human rights legislation and Johnson was awarded damages as a result.   

Johnson’s case is an important reminder to both employers and employees that what you see isn’t always what you get.

In Johnson’s case his employer’s assumptions about his weight led directly to compensation. 

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/980389 Tue, 27 Sep 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/980389
The Peacemaker
Companies do not value employees who create or participate in stupid arguments as much as those that avoid them.  The Peacemaker understands this concept and avoids workplace quarrels, especially those between colleagues and he or she never takes sides in a meaningless dispute.  Rather, the Peacemaker offers an objective opinion and unbiased advice.      

The Stoic
Employees have a tendency to seek instant gratification, usually to their own detriment.  When they are denied a raise or a promotion, most will complain and they will do so immediately.  The problem with them, however, is not what they say it is when they say it.  But the Stoic is different.  He or she is cool under pressure and patient when it matters most.  More importantly, the Stoic understands when not to complain. 

The Opportunist
In law, just like in life, timing is everything.  The Opportunist knows this concept well and lurks for an opportunity to take advantage of a good situation.  The Opportunist may not be the best at whatever he or she does at work but by being in the right place at the right time, they get credit from their employers.   
   
The Optimist
No one likes a grouch at work.  This is not news to the Optimist, because he or she is valued by an employer for a positive attitude, even if it is sometimes a facade.  

The Game Changer
Employers obviously value employees who make a difference more than those who just sit on the fence.  But the Game Changer does more than just contribute.  He or she is strategic and savvy, so their involvement usually leads to success.   

• Daniel Lublin is an employment lawyer with Whitten & Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/973789 Tue, 20 Sep 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/973789
Skeletons
Just about every employee has a skeleton in their closet. If yours is so bad you can’t risk it being exposed, then do not challenge your employer’s decision to discipline or dismiss you, however unfair. Some workplace skeletons, although not harmful to your case, will ultimately be harmful to your career.  

Condonation
Many good cases die on the vine because of a delay in mounting an appropriate response. If you disagree with an employer’s decision, such as a pay cut or demotion, you must immediately protest it and do so in writing. Failing to respond simply conveys to your employer that you agreed with the decision or at least that you did not care enough to complain.  

Allegations
Few employees can afford to wait years to settle a case.  Many of these cases would have settled quickly but for trumped up allegations of bad faith or mistreatment.  When you name names in a lawsuit, you motivate your employer to vigorously defend it. In my experience, too many employee-side lawyers mistakenly aggrandize claims and then later regret it.    

Hypocrites
Many cases turn sideways when the conduct you complain of is similar to what you have done. In one recent bullying case, the judge found that although the employee had been bullied at work, she had previously bullied her own colleagues. Although her claim for bullying was legitimate, she was denied damages because she had engaged in the very same conduct that she had complained of. Do not expect any sympathy for your grievances if you do not make them with clean hands. 

– Daniel Lublin is an employment lawyer with Whitten &?Lublin LLP.

]]> http://www.metronews.ca/toronto/comment/article/967127 Tue, 13 Sep 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/967127 “The pen is mightier than the sword”
- Edward Bulwer-Lytton

Too often employees ruin their own perfectly good cases. Mostly, these employees fail to pick their battles, especially with their own lawyers.  Here are the various types of “losers” and the reasons why they just love to fail.       

The Penny Pincher
They want substantially more from a lawyer than what they are willing to pay for.  They will invest more time searching for a free lawyer than had they just agreed to pay for a good one from the outset. They will always argue over getting the last penny in any deal, which ironically will cost them more in the long run.
 
The Know-it-All
They have a well strategized plan about how they will win their case. The problem is that they are often wrong and they are never willing to admit it. They will listen to their lawyers but as soon as they do not get the answer they want to hear, they will take a course of action that will inevitably make their case harder to settle.  

The Story-tellers 
They tell fabulous stories about their cases, except that these stories are always far from the truth. They will convince themselves that they have a great case, worth many millions of dollars and that their employers will open their wallets to silence their claims. The problem is that if their employers and even their own lawyers do not believe them, a judge almost never will either.    

The Bully 
They are so used to getting away with mischief that they can never foresee their behaviour catching up with them.  However, when it eventually does (and it always does) the bully falls harder than anyone. They get little sympathy from ex-employers and even less from the judges.  

The Napoleon
This class of employee will fight for just about everything. They will challenge performance reviews, workplace policies, hiring decisions and most definitely they will challenge firing decisions.  They will invest more time and energy in court than had they just moved on and found another job.  However, they are great clients because I often see them more than once.       

]]> http://www.metronews.ca/toronto/comment/article/960799 Tue, 06 Sep 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/960799   –Winston Churchill

The above quote is as true at work as it is in life, except that in workplace law there is always an exception.  Here is a sampling of some of the questions readers of this column frequently ask and the answers I often provide.    

Performance appraisals

When assessing merit, your appraisals matter.  When assessing severance, they are mostly irrelevant. This is because poor performance is seldom cause for dismissal.  Similarly, there is no such concept as “near cause”, which means there is no correlation between your level of performance and the quantum of severance you will ultimately receive.  Therefore, if you are fired and it relates to performance, you should receive the same severance as if it did not.  

Letters of reference

Employees believe they are always entitled to a reference.  However, there is no rule or law compelling a reference, no matter how long or meritorious your service.    

Employment contracts

If there is a written contract, it has to meet a number of tests. You must, at least, be given the opportunity to negotiate or those terms that are punitive may not be enforced later on. This rule also applies during the course of employment, except that something of greater value must also be offered, such as a raise or a promotion, in exchange for a contract. Otherwise, the courts have reasoned, an employer could unilaterally impose new terms, and you would be left without the leverage to negotiate or refuse.

Resignations  

If you resign with advance notice and your employer asks you to immediately leave, are you entitled to pay for the remaining period of notice?  Yes.  Unless you signed a contract that says otherwise, generally you must be paid.      

Independent contractor agreements

It usually will not matter that workers have signed agreements confirming they are independent from their employers.  When this characterization is challenged, often many years later, courts are apt to find these workers were truly employees.  No surprise there. Many times the contract represented little else than a “label”. What actually matters is how the parties behaved.

]]> http://www.metronews.ca/toronto/comment/article/949587 Tue, 23 Aug 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/949587
Sharon Lynn Rodrigues, a manager at a Dairy Queen in Castlegar, B.C., was a very competent employee. But she was also a bully.  

Rodrigues openly swore at work, referred to her staff as “stupid,” arrived late, took long breaks and did not hesitate to criticize other employees for their performance. When she was in a foul mood, she was miserable to be around, and co-workers accused her of being aggressive and verbally abusive. Even the restaurant’s owner was afraid to confront her.  

Although Rodrigues saw many of the staff as friends, they did not see it that way. They found her difficult to work for and highly critical.

Her management style eventually caught up to her when complaints mounted to the restaurant’s owner, Tim Kenna. One employee even inquired about a harassment claim. In response, Kenna resolved to deliver the message in the form of a probationary letter, warning Rodrigues that her behaviour was intolerable and that unless it improved, she would be fired. Kenna then left the store.   

In Kenna’s absence, Rodrigues launched a tired against him showing the letter to the staff and calling Kenna an idiot or a moron – or possibly worse. She even showed the letter to a customer. Eventually, she just left. The situation was extremely awkward for the staff and one of them threatened not to return to the store until the problem was resolved. When Kenna learned what happened, he fired her.  

Out of a job of 16 years and without severance, Rodrigues sued. Amazingly, she was in luck. The legal doctrine of condonation provides that an employer cannot later rely on misconduct as grounds for discipline if no steps were taken to correct that behaviour when it first occurred. Here, Kenna made one crucial mistake. Although he was aware of the staff’s concerns, he stood by, never formally warning Rodrigues that her behaviour was unacceptable – until it was too late. Because of this, Rodrigues was wrongfully dismissed and awarded damages, proving that sometimes even bullies have rights.


Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/943486 Tue, 16 Aug 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/943486
Paying only the statutory minimum on dismissal
You can’t make an agreement to pay someone what they are already entitled to. Employers often try anyway. This usually leads them straight to court where judges show them little sympathy and, as in one recent case, can even award additional damages simply for having tried to take advantage of an employee’s ignorance.   

Probation 
Employees are not automatically on probation when they start employment unless they sign an employment contract that permits termination, for any reason, during that period. Many employers misunderstand this rule, often to their detriment. Further, there is no right to unilaterally place an employee on probation after she starts work, which a recent court found was a constructive termination.  

Resignations 
In order to resign you must clearly and unequivocally wish to leave – and not to return. It is not a resignation if you are asked or encouraged to leave, nor is it a resignation if you are forced to leave.  

Workplace investigations 
To rely on misconduct as grounds for discipline or dismissal, allegations must be thoroughly investigated by a trained and neutral party. This rarely happens. Instead, human resources managers investigate by going through the motions, often just to say that they have. Courts routinely overturn the results of these “investigations” although, ironically, employees caught lying during the investigation will give their employers cause for dismissal when their initial behavior did not.    

Not properly documenting discipline
To rely on misconduct as grounds for dismissal, demotion or even a negative performance review, courts require that progressive or corrective means should be used first. Letters should be sent that clearly identify areas of concern, offer suggestions for recovery and, not least, set out the consequences of an inability to improve. I am often surprised when employers’ later claim my clients engaged in “serious misconduct” but overlooked providing them with a simple letter at that time.


Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/937072 Wed, 10 Aug 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/937072 "It is easier to be critical than correct." - Benjamin Disraeli







Today, much of the workforce feels empowered to complain. When upset about their boss or their job, these employees no longer visit their doctors seeking a note for a leave of absence. Now they just call their lawyers. But what happens when a lawyer’s letter goes too far? One B.C. employee recently found out the hard way.  



Sukhwinder Grewal and her boss Dalbir Sohi had a rocky relationship from the get-go. Grewal, a branch manager for the Khalsa Credit Union in B.C., was frequently on the receiving end of Sohi’s criticism. Deeming his contempt to be unwarranted, Grewal often responded with letters defending herself and her actions. Sohi viewed those letters as insubordinate and disrespectful.  



Matters came to a head when Sohi discovered that Grewal’s personal home mortgage, through the credit union, was inputted incorrectly. He believed that Grewal had inappropriately received a personal benefit and wrote a memo to the credit union referring to Grewal’s mortgage as a “scandal” and raising other issues he had with her performance. Before Sohi could question Grewal, she went on disability leave.  



Upon her return to work, Grewal learned that during her leave Sohi had disclosed her alleged mortgage “scandal” during the credit union’s governance hearing and that her name appeared in a public document. Believing this was highly inappropriate, Grewal’s lawyer sent a letter to Sohi accusing him of creating a pretext to dismiss her and demanding that he apologize to Grewal and acknowledge that his allegations were baseless and brought in bad faith to harm Grewal and her reputation. The letter concluded by threatening to sue Sohi if he did not apologize. The credit union responded on Sohi’s behalf claiming that, through her lawyer’s letter, Grewal had just resigned.  



At a recent trial, the judge determined that, but for her lawyer’s last letter, Grewal would have been wrongfully dismissed. Although Grewal’s concerns may have been justified, the letter from Grewal’s own lawyer tipped the scales against her. According to the judge, that letter “permanently undermined the employment relationship” and was cause for her own dismissal.  



Employees are entitled to criticize their bosses and their employers without fear of immediate dismissal.  However, there is a limit. In the quest to find the appropriate balance between criticisms and accusations, sometimes even the lawyers need counsel. 











Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/932670 Wed, 03 Aug 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/932670
In a file I have, the employee worked for her company for nearly 20 years. Some time ago she was told that she would have to sign a contract simply to “confirm her employment,” which is unnecessary, of course, but was said to her in an effort to encourage her to just sign it. Fearful of antagonizing her employer and concerned that she could lose her job, the employee signed her name and continued work as before. Many years later, she was fired as part of a restructuring and offered a severance package well below the minimum for someone of her age and tenure.    

It was a simple win – or so I thought when I first reviewed her case. But (and there is always a but in workplace law) the contract she signed specifically limits her damages to only one week’s pay, which is just the minimum and well below what is fair. Although the conclusion to this case will be based on other factors that are involved, there is one certainty: without the contract, her case would be stronger.  

What most employees do not understand is that they do not need a written employment contract in order to protect their rights. This is because the law implies a number of favourable terms designed to defend them, such as the requirement not to change the terms of their job, from which constructive dismissal arises; the prohibition against dismissal without fair notice, which is otherwise a wrongful dismissal; and the ability to work for competitors and solicit clients following departure. However, modern employment contracts are replete with employer-friendly terms, and most employees believe they have little or no choice but to sign them.      

What should employees do? First, review any new contract with a lawyer and don’t be reluctant to negotiate terms.  Seldom are employment offers withdrawn if a contract is not agreed to. Second, challenge the enforceability of these contracts where the facts present that argument. I have won in court by raising the inference that a contract was signed without proper consent – such findings are not exceptions.



Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/925018 Mon, 25 Jul 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/925018
Employees are entitled to “accommodation” for illnesses and disabilities (even perceived ones), and employers must take all reasonable steps to comply. Although the law may be clear-cut, the facts are seldom straightforward. A “headache” to one physician may be a chronic illness to another.    

Given the potential for confusion, disputes often arise.  When faced with a challenged sick leave claim, employees ought to do as follows:

1. Do not assume that your employer can read your mind. Put your request for a leave in writing and say that you will immediately visit your doctor to confirm your illness.      

2. When you see your doctor, ensure that he or she provides a letter and one with a real explanation. The single most common cause of an incredulous employer is a medical note that simply states that you are “off work until further notice.” If you are too sick to do your job, your doctor must say that you cannot perform any work at all, even modified employment.  

3. Do not rashly resist a request for better medical information. In my experience, employees too often refuse to provide further evidence that they are ill. When they do so, they appear as if they are lying. While you do not need to disclose every detail about a medical condition, some details are necessary for the employer to determine how best to accommodate you upon your return to work.

4. If you are prescribed a medical treatment plan, follow it. I have seen many sick leave claims rejected because the employee refused or “forgot” to follow a doctor’s instructions.  

5. Do not consider sick leave an entitlement. It is something you must prove and keep in mind that an employer’s willingness to grant your leave is often dictated by factors that have little to do with your health or condition. 



Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/919236 Tue, 19 Jul 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/919236
As a supervisor for the Alberta-based oilfields service company T.C. Mobile Vessels Ltd., Bigelow thought she had complied with the usual vacation protocol: she notified her boss that she was attending a family reunion at the end of August and spoke to him again one week before her trip to ensure everything was in order.  

However, on the day of her departure, her boss called from out of town demanding that she change her plans and work that night. Bigelow explained that she had scheduled a vacation and that it was too late to reschedule.  Thinking he was entitled to issue the directive and that Bigelow would have to obey, her boss got upset when she refused to take the shift. He later called her demanding that she return her equipment to the company.  

When she returned from vacation, Bigelow received a text message from her boss confirming that she had been dismissed. Although he later testified that he would have considered rehiring Bigelow had she returned his calls, Bigelow was not interested in returning.  

Since Bigelow was not paid any severance, she sued T.C. Mobile and recently won her case. In declining to change her vacation plans, Bigelow had disobeyed a direct order from the boss. However, it was an order that was unreasonable, and it was the first time Bigelow had done so, the court ruled.    

The court noted that “although an employer is entitled to request that an employee re-book vacation to accommodate its requirements, the employer must be reasonable.” Here, the request was made at the last minute and after Bigelow had already obtained approval.  

Vacations are important benefits and, once approved, should be not interfered with, unless there is a very good reason. 


Daniel A. Lublin is an employment lawyer with Whitten & Lublin LLP.  Reach him at dan@toronto-employmentlawyer.com. Follow him on Twitter @danlublin.

]]> http://www.metronews.ca/toronto/comment/article/914494 Tue, 12 Jul 2011 14:00:00 -0400 Daniel Lublin, Metro Canada http://www.metronews.ca/toronto/comment/article/914494