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Posts tagged: Employment lawyer Barrie

A Change for Employees and Termination Packages: The IBM Example

By , September 7, 2018 3:48 pm

The Basics

Under the Employment Standards Act (ESA), employees who are terminated are entitled to appropriate notice of termination, which is generally a week’s worth of notice, or pay in lieu of notice, for each year worked up to a maximum of eight weeks. Not every employee is also entitled to severance.  Therefore, if you worked for a small company for twenty years, your employer might be required to give you only eight weeks of notice or pay in lieu of notice. Alternatively, the common law entitles employees to up to a month of notice, or pay in lieu of notice, for each year worked.

For this reason, many employment contracts contain a termination clause or a section that attempts to reduce the cost of terminating an employee by either introducing an alternative fixed amount or limiting what the employee can get to the bare minimums under the ESA. While termination clauses may provide you, as an employee, with security about what exactly you are entitled to should you be terminated, they are also dangerous as they can also slash the amount of money you to which you might otherwise be entitled.

Some termination clauses, however, are unenforceable: they may violate the ESA by not specifically mentioning severance pay, or be ambiguous. Because of this, many cases make their way to court.  

While the ESA outlines the minimum compensation for employees who are fired, the amount that an employee can be paid at the time of their termination can be significantly higher.  

Termination clauses have been a fiery area of employment law, and the courts have had mixed opinions on how to determine whether a termination clause is valid and lawful.  In 2017, many court decisions sided with employees because they are typically the weaker bargaining partner in an employer-employee relationship. However, in the recent case of Noah Amberber v. IBM Canada Ltd., however, the Ontario Court of Appeal ruled in favour of the employer.  This ruling sets an important precedent for judges presiding over cases where employees have taken their employer to court over potentially invalid termination clauses, and is relevant to any employee with a termination clause in their employment contract.  

Noah Amberber v. IBM Canada Ltd.

Former IBM-employee Noah Amberber argued that the termination clause in his written employment agreement, which granted him 18 weeks of salary instead of the 16 months he said he was entitled to, was unenforceable because it violated the ESA minimums, because among other things it was ambiguous.

At the first level of court, the judge agreed the termination clause was indeed ambiguously worded.  She decided it had been written unclearly, and therefore ruled in favour of Amberber.

That decision was successfully overturned in the Court of Appeal, where the judge sided with IBM that the termination clause was clear. The Appeal judge decided that, when read as a whole, the clause was decisively written. The Court of Appeal stated that the first judge “strained to find an ambiguity where none reasonably exists.”

What it All Means for You

This is an incredibly dynamic area of law that is continually changing based on the decisions of judges.  The best course of action is to try and change a termination clause before you sign it. That means seeing a lawyer once you have a new offer but before you start the job.  It also means getting advice if your employer gives you a new contract during your employment. When an employer does this, they have likely made changes to the contract try and make the termination clause better.  If you have already been terminated, with Noah Amberber v. IBM Canada Ltd. in mind, it is definitely in your best interest to figure out whether a termination clause is enforceable before signing off on a severance package by seeking advice.

While in the past, judges were more likely to rule in favour of employees because of their disadvantages in drafting the termination clause, it is likely that future rulings will be more critical of employees arguing against the validity of their contracts.  We at MacLeod Law Firm specialize in dealing with these types of situations. If you are an employee who has a termination clause in your employment contract, come and see us.

To read more about termination clauses, read on here:

If you have questions about your rights regarding termination clauses 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.

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.

WSIB Benefit Changes Effective January 1, 2018

By , January 11, 2018 11:29 am

Claiming benefits through WSIB because of harassment or bullying at work just got much easier. Until very recently, the Workplace Safety and Insurance Act only allowed employees to claim workers compensation benefits if they experienced traumatic mental stress at work. This was very difficult for employees to prove.  The law said that the stress had to be brought on by an event that was sudden and unexpected, such as seeing a fatal accident at work.

As I wrote previously, in this blog, the law was found to be unconstitutional. Employees who experienced chronic physical illness could receive benefits.  However, those who developed chronic mental illness could not.  This treated employees differently on the basis of disability, which is not allowed.

The Ontario government has now changed the law.  Employees can seek benefits for both chronic and traumatic mental stress that arises because of work.  

 

What does this really mean?

This change is very significant. Employees who became sick from harassment at work, now have another avenue to seek redress and compensation.  The change in the law recognizes that issues at work can affect employees’ mental as well as physical health.

Employees will need to show that a regulated health professional, such as a family physician, has given them a diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders. They will also need to show that they experienced substantial work-related stressors like bullying/harassment which caused or significantly contributed to the chronic mental stress.

If an employe experienced chronic mental stress from work at any time since April 29, 2014, and has not filed a WSIB claim, she still can.

The changes to the legislation are also clear that managerial decisions which cause mental stress are not covered.  If the employee experienced chronic mental stress as a result of a demotion, transfer, discipline or termination, he will not likely qualify for WSIB benefits.

If you have experienced mental stress because of work and are considering your legal options, you should consult a lawyer or contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

 

“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.”

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.

 

Can I go back to school to retrain after being terminated?

By , June 12, 2017 8:37 am

As we have written before, once a person’s employment is terminated, that person has a legal obligation to look for alternative employment. We often receive calls from recently-terminated long service employees who ask us whether they can go back to school to retrain so that they can compete with younger members of the workforce. A recent decision from the Ontario Superior Court of Justice shows why recently-terminated employees should proceed with caution when deciding whether to return to school.

Benjamin v Cascades Canada ULC

Mr. Benjamin had been employed by Cascades Canada ULC (“Cascades”) as a line operator for 28 years before his employment was terminated without notice of termination. Mr. Benjamin was provided with termination pay and severance pay slightly above his minimum entitlements under the Employment Standards Act.

Mr. Benjamin sued his employer for pay in lieu of 24 months’ notice of termination, less the amounts he already received. Cascades submitted that Mr. Benjamin failed in his obligation to mitigate his losses upon his termination when he decided to retrain by attending a full-time welding program for 6 months rather than applying for three positions available at Cascades, which were similar to Mr. Benjamin’s work and remuneration. A human resources representative at Cascades testified that Mr. Benjamin was both qualified and likely to secure all three of the positions.

Mr. Benjamin argued that his decision to retrain was reasonable because he needed to improve his skills after 28 years, and that attending the program would maximize the chance of finding a job at his former income.

The judge disagreed and described the test on the ‘duty to mitigate’ in wrongful dismissal cases as follows: an employer must establish that

(a) the employee did not take reasonable steps to seek comparable employment, and

(b) if the employee had done so, the employee could have procured such comparable employment.

If the employer is able to establish these facts, the employee has failed to mitigate, which can have the effect of reducing or eliminating an employee’s entitlement to notice.

The judge found that although an employee’s decision to seek retraining is not, by default, sufficient to prove that the employee failed to reasonably mitigate, in these circumstances, to allow a dismissed employee to ignore comparable employment in favour of retraining would have the effect of giving that employee a “free pass” to change careers at their previous employer’s expense.

Conclusion

Dismissed employees are expected to be reasonable in their search for alternate employment. Whether returning to school is reasonable depends on the person’s circumstances at the time of termination, the industry they work in, the timing of their decision to return to school and their efforts at obtaining alternative employment both before and during their retraining. When deciding what to do after a termination, it is important to consult an employment lawyer to learn about your duty to mitigate.

 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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