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Posts tagged: Constructive Dismissal

Was your Suspension a Constructive Dismissal?

By , October 26, 2018 3:05 pm

Was your Suspension a Constructive Dismissal?

Employees today spend as much time at work as they do at home. So, the workplace should be an environment where you feel secure, trusted and safe. Unexpected changes in your job, such as a suspension, can leave you feeling confused, frustrated and unsure of where you stand. Your employer has a duty to abide to the contract, policies and/or handbook that you have signed.  A suspension without pay may be a constructive dismissal unless you have agreed to this kind of discipline in an employment contract or policy. This was recently highlighted by the Court of Appeal in Filice v. Complex Services Inc.

To learn other workplace changes which might be a constructive dismissal see here.

The Case

Mr. Filce worked for a casino run by Complex Service Inc. as a Security Shift Supervisor.  The Alcohol and Gaming Commission of Ontario audited the casino and discovered inconsistencies in entries made by Mr. Flice. Mr. Filce was then investigated by police and Complex placed him on an unpaid suspension.

Mr. Filce’s suspension lasted 17 months.  During this time he was charged with theft, but never convicted. However, because he lost his gaming license, after the unpaid suspension, Complex terminated Mr. Flice’s employment.  

Mr. Flice sued for constructive dismissal arguing that Complex had no right to suspend him without pay. The Superior agreed and awarded him pay for the 17 months he missed during the suspension and $100,000 in punitive damages.

Complex appealed. However, the Court of Appeal agreed that Complex did not have the right to suspend Mr. Filce without pay in his employment contract or handbook. Doing so, was a constructive dismissal. However, the Court of Appeal did reduce his damages.  

Lessons For Employees

  • Read and understand your employment contract and employment policies or handbooks. These policies can take away your rights, or give your employer rights such as the ability to suspend you without pay.
  • If you are suspended, get legal advice.  Your employer may not be allowed to do so, and you pay be able to get compensation or get back to work sooner.

If you have questions about suspensions or constructive dismissal and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not 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 referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Secret Recordings at the Workplace (Part 2)

By , August 21, 2018 9:24 pm

Last week, I posted a blog about the advisability of recording conversations at the workplace. However, that’s not the only consideration to keep in mind given the advent of technology. I often receive calls from clients who suspect they are being monitored by their employers.

One thing that is important to know is that secret recordings could capture personal information and infringe on privacy rights, which may lead to a claim for breach of privacy. In 2012, the Ontario Court of Appeal established a new tort called “intrusion upon seclusion” and awarded damages for the breach of privacy in a case where an employee of a major bank accessed the personal financial records of her ex-husband’s new girlfriend on at least 174 occasions. This tort could arise in a situation where an employee’s expectation of privacy is violated by being surreptitiously recorded.

Another problem is that secret recordings can erode the trust that is necessary in the employment relationship and potentially lead to constructive dismissal claims. The case law around constructive dismissal is quite complicated, but generally speaking, a constructive dismissal occurs when an employer makes a significant change to an employee’s employment that shows the employer no longer wants to be bound by the contract. Furthermore, employers are subject to a duty of good faith both during a person’s employment, and at the time of termination. If employees have never been subjected to surveillance, suddenly introducing surveillance could be seen as a significant change that shows the employer is not willing to be bound by the original employment contract. Introducing new surveillance could also be seen as a breach of the duty of good faith. Judges have found that a breach of the duty of good faith can lead to aggravated and punitive damages in addition to wrongful dismissal damages.

If you believe you are being monitored by your employer, you should consult a lawyer. You can contact me at [email protected] or 647-985-9894.

When Being Suspended Without Pay is Constructive Dismissal

By , July 25, 2018 12:24 pm

Sometimes your employer is allowed to suspend you without pay. Other times, this is a breach of your employment contract and can amount to a constructive dismissal. How can an employee know when a suspension without pay is justified?

The Ontario Court of Appeal looked at the appropriateness of an employer suspending an employee without pay in Filic v Complex Services Inc., 2018 ONCA 625

Facts

Mr. Filic worked as a Security Shift Supervisor for the appellant employer, who operated two Casinos (“the Casino”). All employees working in the Casino’s Security Department have to maintain a valid gaming registration issued by The Alcohol and Gaming Commission of Ontario (“AGCO”).

In December 2017, the AGCO informed the Casino’s Director of Security, Mr. Paris, that an audit of the Casino’s lost and found records raised some red flags. Police officers told Mr. Paris that Mr. Filic was under an ongoing investigation for theft in the workplace. In response, Mr. Paris immediately placed Mr. Filic on an investigative suspension without pay, citing Casino policies.

In January 2008, five charges were laid against Mr. Filic and the AGCO suspended his gaming registration. Accordingly, Mr. Filic could not perform his duties as a Security Shift Supervisor at the Casino. Unpredictably, all five of Mr. Filic’s charges were either withdrawn or dismissed and his criminal matter ended. His gaming registration remained suspended and Mr. Filic voluntarily surrendered this licence to the AGCO. Weeks later, Mr. Paris terminated Mr. Filic from his job because he lacked a valid gaming registration.

Mr. Filic launched an action against the appellant claiming constructive dismissal (among other things). The trial judge ruled in favour of Mr. Filic and the Court of Appeal upheld the trial judge’s conclusion that Mr. Filic was constructively dismissed.

The Test for Constructive Dismissal

The Supreme Court of Canada has outlined a test for constructive dismissal. Where there is a single act by the employer that could constitute a breach of the employment contract, the test requires a review of the specific terms of the contract of employment. This involves two steps:

  1. identify an express or implied contractual term that was breached;
  2. determine if the breach is sufficiently serious to constitute constructive dismissal.

Generally, the employee is responsible for establishing a constructive dismissal. However, the burden shifts to the employer when there is an administrative suspension. There are a lot of different factors courts consider to determine if a suspension is justified.

Mr. Filic’s Employment Contract

Mr. Filic’s employment contract (viewed as including the Casino’s policies and handbook) allowed the employer to suspend Mr. Filic as long as it continued to act reasonably. However, the contract did not have express language that stated suspension would be without pay. Although Mr. Filic’s suspension was justified, the appellant could not prove that suspension without pay was reasonable, especially at the early stages of the AGCO investigation. The court found that suspending Mr. Filic without pay in December of 2007 amounted to a constructive dismissal.

The Filic case outlines what courts will consider in deciding whether an unpaid suspension is justified. It also shows the importance of understanding your employment contract and workplace policies that affect you.

If you have been suspended without pay and would like more information on your rights, contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

Have you Been Terminated Due to Poor Performance Under a Performance Improvement Plan (PIP)?

By , August 11, 2017 2:07 pm

The objective of a Performance Improvement Plan (PIP) is to help an employee identify and correct weaknesses in their performance. Nevertheless, employers are not always motivated by sincere intentions when implementing PIPs. Employers frequently use PIPs as a tool to protect themselves against wrongful dismissal claims by creating a paper trail that appears to justify termination. In other words, PIPs are often used to disguise an employee’s imminent termination. A decision by the Ontario Court of Appeal in Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 offers some protection to employees who have been terminated due to poor performance under a PIP. This decision confirms that a failure to properly implement a fair PIP can result in wrongful dismissal.

 

Performance Improvement Plan

The Case

Facts:

Esther Brakes was a manager at McDonalds for over 20 years.  She managed a branch in Kanata, Ontario from 2004 to 2011 and consistently received excellent performance reviews. However, following her first negative performance review in 2011, she was transferred to an under-performing Walmart location. Within three months she was placed on a PIP and given 90 days to achieve a lofty set of goals established by her employer. Unfortunately, she was unable to achieve these goals, and at the end of the PIP term she was told to choose between a demotion to “first assistant” or termination. She refused the demotion and was terminated on August 10, 2012.

Decision:

The Court ruled that the PIP was not properly implemented since her employer’s goals were “arbitrary and unfair”. For example, as part of her PIP, Ms. Brakes was expected to reduce her location’s customer service opportunity (CSO) score to 0% despite its consistently poor score of 35% in previous years. The Court also ruled that the employer’s goals were objectively more onerous than other standards that had been set over the course of her employment. Ultimately, Ms. Brakes had not been given a “clear and reasonable opportunity” to correct her performance issues. The PIP was used as an instrument to justify her termination, a decision that had already been made before she was placed on the PIP.

The Court ruled that Ms. Brakes had been constructively dismissed.

Lesson for employees: PIPs are not always implemented properly by employers. It is important to obtain legal advice to determine whether your employer has complied with the appropriate steps.

If you have been terminated because of poor performance under a Performance Improvement Plan, MacLeod Law Firm can assist you. Please contact us at [email protected]  or 647-204-8107.

 

I Quit, Can I Sue My Employer for Constructive Dismissal?

By , June 19, 2017 11:49 am

We are often asked the question: “can I sue my former employer for constructive dismissal?”  The answer is maybe. A new Court of Appeal decision confirms that whatever change in working conditions that occurred, it must be the reason you quit.  Otherwise, you are out of luck.

What is Constructive Dismissal?

Generally, constructive dismissal is when your employer makes a significant change to your employment that shows it no longer wants to be bound by your contract.  This could include lowering your pay, a demotion, or suspension.  For more examples about the kind of actions that could be constructive dismissal keep reading here.

The Case

In Persaud v. Telus Corporation, Telus increased Ms. Persaud’s working hours and one of her co-worker’s accused her of sabotaging a project.

In addition to these problems, Ms. Persaud was dissatisfied with the management of Telus, unhappy with the direction the company was taking, critical of the performance evaluation structure, and particularly unhappy with Telus’ treatment of her friend and mentor.

The Superior Court found that she did not quit because of increased hours or a poisoned work atmosphere but because of these other concerns.  The Court of Appeal agreed.

They also found that after the changes in working hours, Ms. Persaud continued to work without objecting.  The court found that she implicitly accepted the change.

Both courts denied Ms. Persaud any damages.

Lessons

To determine whether you have been constructively dismissed a lawyer needs to carefully review the facts of your case. Constructive dismissal cases can be more complicated and risky than wrongful dismissal.  You need to get good advice and timing is important. You need to decide whether to take a legal step quickly.

If you are thinking about resigning, or have already quit, and would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not 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 referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

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