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Posts tagged: wrongful dismissal lawyer

The Perils of Dismissing a Disabled Employee

By , July 12, 2016 1:08 pm

On June 30, 2016 the Ontario Court of Appeal (the “OCA”) released its decision in a case involving the dismissal of a disabled employee who earned about $ 22 000 per year. I wrote about the trial decision in April (see here for my blog post).

The OCA increased the damages the employer was ordered to pay from about $ 110 000 to about $ 245 000 which was basically the amount the person claimed in her Statement of Claim. One wonders if the OCA would have ordered the employer to pay more damages if the employee had sought more damages.

This decision is an evolution of the OCA’s 2014 Walmart decision which awarded an employee significant damages in addition to traditional wrongful dismissal damages. I have also written about the Walmart decision (see here).

The Facts

Ms. Strudwick worked for an employer that recruits individuals to participate in focus groups. She was paid $ 12.85 per hour and her duties involved data entry, and instructing recruiting staff.

In 2010, Ms. Strudwick became deaf. According to the trial judge: “…her employer’s attitude towards her and treatment of her became unconscionable. The plaintiff deposed she was constantly belittled, humiliated and isolated.” Among other things, the employer refused to accommodate her disability.

Damage Award

Wrongful Dismissal Damages

At the time she was terminated, Ms. Strudwick was 59 years old, had worked for almost 16 years, and held an administrative position. The trial judge ordered the employer to pay her a total of 24 months’ pay in lieu of notice and about $ 6000 in lieu of lost benefits during that time. This included twenty months pay in lieu of reasonable notice of termination and 4 months pay for bad faith termination or Wallace Damages. The OCA applied the traditional Bardal Factors and deferred to the trial judge and upheld the 24 month damage award which is the unofficial cap on wrongful dismissal damages.

Human Rights Damages

The judge awarded her $ 20 000 in general damages under the Ontario Human Rights Code. The OCA looked at court cases and Ontario Human Rights Tribunal cases including one of our cases and increased the damages to $ 40 000.

Damages for Intentional Infliction of Mental Stress

The judge concluded that the employer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood which required psychological treatment and ordered the employer to pay almost $ 19 000 for the cost of this treatment. The OCA increased this damage award to $ 35 294 including $ $5,000 to address Ms. Strudwick’s pain and suffering, and loss of enjoyment of life.

Aggravated Damages

The trial judge awarded Ms. Strudwick no aggravated damages. Taking all of the abuse Ms. Strudwick endured, the OCA decided to award her $61,599.82 damages after deducting the Wallace Damages she was awarded.

Punitive damages

The judge ordered $ 15 000 in punitive damages because he did not think the other damage awards adequately accomplished the objectives of “retribution, deterrence and denunciation.” The OCA increased this amount to $ 55 000.

I expect this decision will hasten the trend for employee side lawyers to claim non-traditional damages in wrongful dismissal cases. The OCA’s decision to increase the damage amount in four of the damage claims will likely mean that employee counsel will be seeking higher settlements in the future.

I will be interested to see if the employer appeals this decision to the Supreme Court of Canada (the SCC”) and if the SCC grants leave to appeal how the SCC will view this case in light of its 2008 decision in Honda.

Lessons to Be Learned

  1. Disabled employees have additional legal rights. Accordingly, employers should make themselves aware of these rights. For more information on the rights of disabled employees, click here.
  2. Any request for accommodation should be taken very seriously and failure to do so can result in significant legal damages. For information on the duty to accommodate, click here.
  3. Trying to force an employee to quit – especially a disabled employee – can result in additional legal damages.
  4. Judges have the discretion to order an employer to pay a sympathetic employee many different types of damages. For more information on different types of wrongful dismissal damages, click here.
  5. Always consult with an employment lawyer before terminating a disabled employee.

How much Notice of Termination is a Probationary Employee Entitled to Receive?

By , April 26, 2016 9:00 am

I draft employment contracts for most of my employer clients. When doing so I always ask whether the employer wants to include a probationary period clause in the contract.

A recent case highlights some of the issues that arise when there is a probationary clause in an employment contract.

In this particular case, an employee who had been lured from secure employment signed an employment contract with a six-month probation clause. The question was whether he was entitled to “reasonable” notice of termination?

What is Probation?

According to the judge hearing this case, “Probation is a testing period for the employer to assess a probationary employee’s suitability. It offers the employer an opportunity to determine if the employee will work in harmony with the organization, if hired permanently. Suitability includes considerations of the probationary employee’s character, ability to work with others, and ability to meet the employer’s present and future standards.” … “Probationary employment, on its face and by its nature, is inconsistent with any inducement or promise of long-term employment.”

What are an Employer’s Obligations During Probation?

According to the judge hearing this case,A probationary employer must extend to the probationary employee a fair opportunity to demonstrate suitability for permanent employment. However, in the absence of bad faith, an employer is entitled to dismiss a probationary employee without notice and without giving reasons.”…” “All that is required is that the employer show that it acted fairly in determining whether the probationary employee was suitable and that he/she was given a fair opportunity to demonstrate his/her ability.”

Judge’s Decision

Justice Sanderson concluded: “Since the employer was entitled to terminate the probationary employment in good faith during the probation period, it is not necessary for this Court to determine the period of reasonable notice.” It appears the judge concluded that the employee was entitled to the one week notice of termination he was entitled to receive under Ontario’s Employment Standards Act as opposed to the 4 months termination pay the trial judge had awarded the employee. We do not know whether this decision has been appealed.

Lessons to Be Learned

  1. This case states that an employer has the onus of proving that a probationary employee was provided with “a fair opportunity to demonstrate suitability for permanent employment.” What does “fair opportunity” mean? Does it mean that the employer is required to monitor a probationary more closely than a non-probationary employee?
  2. In situations where the employer wants the right to terminate an employee without notice during the first three months of employment there is no need for a probationary clause if the employer has a without cause termination clause which gives the employer the right to terminate an employee’s employment by providing the minimum notice of termination required under Ontario’s Employment Standards Act.
  3. In situations where the employer wants a probationary period in excess of three months then the employer can consider including an early termination provision in the probationary clause.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Legal Shades of Grey: Are offensive statements made on personal time just cause for termination?

By , June 2, 2015 9:20 am

Hydro One Employee Terminated for Making Sexist Statement to a TV Reporter

Shawn Simoes who worked as an engineer for Hydro One was recently terminated when his employer found out that he made an offensive and sexist comment to a female TV reporter, Shauna Hunt. To read the Global News story about this, click here. He did not identify himself as a Hydro One employee. However someone saw the story on TV, and told Hydro One who fired him shortly after the story ran on TV.

Is Making a Sexist Comment Just Cause for Termination?

Assuming Mr. Simoes is not a member of a union, he can commence a wrongful dismissal action and claim for termination pay. Hydro One will be ordered to provide him with termination pay unless it can prove it had “just cause” to terminate his employment.

Is making an offensive or unpopular statement in your personal capacity just cause for termination?

The Three-Step Test an Employer must Satisfy to Prove “Just Cause”

The Ontario courts have outlined a three-step approach to determine whether employee misconduct strikes at the heart of the employment relationship.

The first step is determining the nature and extent of the misconduct. Mr. Simoes could argue that he made the comments in his personal capacity and so there is no connection to his employment relationship and therefore no misconduct warranting any kind of discipline. This argument would not work for a teacher who is convicted of sexually assaulting a child, though the two cases are very different. At what point does ones actions in private become subject to an employer’s scrutiny? Is it any time a person’s word or action becomes public? In this case, this employee was fired shortly after the story ran on the news. In the age of social media where any word or action can be simultaneously captured and posted on twitter, facebook, instagram and other social media platforms- can this really be the standard?

The second step involves considering the surrounding circumstances for both the employer and the employee. In this case, the employee was not at work or a work related function and he was not representing his employer. He uttered a deeply offensive phrase that soccer fans have been directing at reporters for about two years. I have not heard anyone suggest that his words in any way reflected Hydro One’s corporate values.

The third step is determining whether a dismissal is warranted as a proportional response to the misconduct. This involves determining whether the misconduct is sufficiently serious so as to give rise to a breakdown in the employment relationship. At this point in the analysis a judge will consider a number of factors including the employee’s length of service, whether he was a face of the organization to the client or the public, his disciplinary record, and whether he apologized. In this case, I suspect a court would also consider whether he had any supervisory responsibilities.

We Are At a Legal Cross Road

We are at a legal cross road where judges are increasingly being asked to decide when private words or deeds can cost a person his or her job.

For a discussion of a recent case involving two firefighters who were fired for sexist tweets, click here.

For my take on the Jian Ghomeshi termination, click here.

The Road Ahead

In the short term, I think the personal sensibilities of individual judges will decide whether an employer can prove just cause in these kinds of cases. Then one of these decisions will be appealed to the Ontario Court of Appeal where a legal test will be articulated for all Ontario trial judges to follow. If a different test is formulated by the court of appeal in one of more other province then this issue could very well be decided by the Supreme Court of Canada. This is how the common law evolves in Canada.

In the meantime, it will be difficult to predict when an offensive personal statement could cost you your job. For employees who work for public sector and quasi public sector employers like Hydro One who can afford to litigate and lose a case to uphold corporate values, I suggest taking great care. For employees who work for small and medium size private sector employers, I suspect that many of these employers will be less inclined to devote money, time and resources to protecting the organization’s reputation/brand/values in this kind of case and will therefore be less inclined to terminate.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

 

Yet Another Reason Not to Use Fixed-Term Contracts

By , January 23, 2015 10:33 am

I do not like fixed-term contracts. In my experience, a contract of indefinite employment with a termination clause is a better option for an employer in almost every situation.

This blog summarizes a recent case which reinforces my negative views on fixed-term contracts.

The Facts

The employer entered into a one year fixed term contract with a senior manager. There was no obligation to renew the contract. If however the employer terminated the contract before the end of the term then the employee was entitled to 12 months pay.

About a month before the contract was to expire the employer decided not to renew the contract and sent the employee home with full pay until the end of the contract.

The Decision

The Alberta Court of Appeal upheld the trial judge’s conclusion that the employee had been constructively dismissed because he was not permitted to continue his employment and he was not permitted to come into the office. In particular: “When no attempt is made by an employer to obtain an employee’s consent to early termination of a fixed-term contract, the employer risks a finding of termination.”

Because he was constructively terminated before the end of the fixed-term contract the employer was ordered to pay the employee 12 months pay.

Lessons to Be Learned:

1. The courts will read contractual language strictly against an employer.

2. Sending an employee home with full pay can constitute constructive dismissal in some cases.

3. Call an employment lawyer before changing any terms of employment.

 

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship including employment contracts. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, be relied on as legal advice or opinion. The authors make no claims, promises or guarantees about the accuracy, completeness, or adequacy of any information linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Constructive Dismissal Update: 2014 Decisions

By , November 21, 2014 12:11 pm

I am often asked whether a change in employment (or more than one change) is a constructive dismissal. If so, the employee can quit and claim damages for pay in lieu of notice of termination. If not, the person receives no damages. It is an all or nothing proposition. And that is why employment lawyers do not like answering this question.

Definition of Constructive Dismissal

 The definition of a constructive dismissal was set out in the Supreme Court of Canada’s decision in Farber v. Royal Trust Co., 1997 CanLII 387 (SCC)  as follows:

 “A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a term or condition of an employment contract without providing reasonable notice of that change to the employee. Such action amounts to a repudiation of the contract of employment by the employer whether or not he intended to continue the employment relationship. Therefore, the employee can treat the contract as wrongfully terminated and resign which, in turn, gives rise to an obligation on the employer’s part to provide damages in lieu of reasonable notice.”

Applying the Law to the Facts of a Specific Case

The difficultly for lawyers is applying this test to a specific fact situation.

This blog summarizes five constructive dismissal cases that were decided in 2014.

 1. Change in an employee’s hours of work: Ferdinand Oca v Home Depot of Canada Inc, 2014 CanLII 39381 (ON LRB). Mr. Oca was employed for many years as a day shift order picker. In or about early October 2011 Mr. Oca was moved to the night shift (8:00 p.m. to 4:30 a.m.) In early January 2013 Mr. Oca was advised that his hours of work would be changed from 8:00 p.m. to 4:30 a.m. to 10:00 p.m. to 5:30 a.m. Decision: Adjudicator concluded that the change in hours was not a constructive dismissal within the meaning of section 56(1)(b) of the Employment Standards Act.

2. Employer repeatedly pays wages after the employee’s regular pay day: Ma v VE Collective Inc, 2014 CanLII 39566 (ON LRB). Decision: The adjudicator concluded that late payment of wages was a constructive dismissal within the meaning of section 56(1)(b) of the Employment Standards Act.

3. Demotion: Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII).Decision: A transfer from Operations Manager/Vice President of Operations to the position of Purchasing Manager was found to be a constructive dismissal.

For my case comment on this decision, click here.

4. Employer excludes employee from the financial affairs of the company, and subjects her to a poisoned work environment: Scott v Specs Appeal Inc, 2014 CanLII 45319 (ON SCSM). Decision: Unilaterally terminating plaintiff’s involvement in the financial management of the company, and subjecting the employee to a poisoned work environment caused by marital discord between plaintiff and her spouse, the employer’s President, constituted a constructive dismissal.

5. Employer delays a promised promotion. Penteliuk v. CIBC World Markets, Inc., 2014 ONSC 2105 (CanLII). Decision: No constructive dismissal occurred. “Although I have concluded that World Markets did not agree to promote Mr. Penteliuk to the FIG Team Leader position by a fixed date, I find that it was fair in the circumstances for Mr. Penteliuk to have the expectation that he would be formally installed into the FIG Team Leader position within a reasonable period of time…. I find that Mr. Penteliuk raised no clear objection to the timing of his promotion to FIG Team Leader until December 17, 2004, when he tendered his letter of resignation.”

To decide whether or not a constructive dismissal has occurred, a lawyer must carefully review the agreed upon terms and conditions of employment, and the change (or changes) that the employer has unilaterally imposed on the employee without the employee’s agreement.

For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers and employees on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]

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