Things Can Change Overnight - Wise Law, Employment Lawyers, Toronto

"Things can change overnight in any workplace..."

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law Toronto for Tuesday May 2, 2017. Today we are talking about Employment Law.

It is very difficult for employers to prove “just cause” for termination, unless there is evidence of gross or wilful misconduct, like theft, fraud, or intentional dereliction of duties.

To establish “cause” for termination because of performance concerns, employers must typically provide several written warnings as well as adequate opportunity for the employee to improve job performance.

For more information on Employment Law, Family Law, Wills, Estates, and Estates Litigation, visit our website at www.wiselaw.net.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday January 10, 2017. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jan 10, 2017 at 6:59am PST

It is very difficult for employers to prove “just cause” for termination, unless there is evidence of gross or wilful misconduct, like theft, fraud, or intentional dereliction of duties.

To establish “cause” for termination because of performance concerns, employers must typically provide several written warnings as well as adequate opportunity for the employee to improve job performance.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday December 13, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Dec 13, 2016 at 6:35am PST

Can an employer lawfully terminate an exceptional employee who has had consistently good performance reviews?

Under Ontario law, an employer may terminate any employee without cause, so long as the employer provides reasonable notice, or pay instead of such notice, to the employee.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Top 7 Tips for Getting Fired Like a Pro

BY SIMRAN BAKSHI, ASSOCIATE LAWYER

It is never a pleasant experience to learn that your employment is being terminated, no matter what the circumstances may be.

Nonetheless, there is a right way of handling your dismissal. If you are careful in the way you handle your exit, it is possible to protect your legal interests and comfortably make the transition to the next chapter of your career and life.

Here are our top seven tips for getting fired like a pro:

      1.  Leave your job with grace and composure

Perhaps the best advice anyone could ever give you is to take a moment, breathe and not panic.

While it may be momentarily tempting to burst into tears, or to delete all of the files you've been working on or to finally tell your boss exactly what you really think of him or her, resist the temptation.

There is very little value in lashing out at your former employer, and in fact, in many cases, doing so will likely make the situation far worse for you. While your conduct following the termination of your employment typically does not have any bearings on the reasons for the dismissal itself, there have been some cases where Courts have considered post-termination misconduct in determining whether an Employer ultimately had cause to terminate.  

On the flip side, presenting yourself in a professional manner, even in the moments after you've been dismissed can go a long way. Remember, your objective may likely be to find another job within the same industry, and your now-former employer might be one of the best sources for such references and even job referrals.

Don't be surprised by the fact that your employer may wish for the termination to take effect immediately, and may even escort you to your desk and off the work premises. While this can undoubtedly be an upsetting and embarrassing experience, try not to take it personally. Bear in mind that such workplace policies were developed to ensure that there are no breaches of security, and not to make publicly shame you. Take your time to pack your belongings, and if appropriate and permitted, to say your goodbyes to your colleagues.

Of course, if your former goes too far in acting inappropriately during your termination, you may (in some extreme cases) have additional remedies and even be entitled to added compensation.

2.  Don't sign anything!

More often than not, an employer will inform you of the termination of your employment at a meeting attended by your manager and a human resources representative.

They will likely come prepared with a Letter of Termination, which may or may not set out a severance proposal, and include a Release.

It is very important that you do not sign anything without first consulting with an employment law lawyer. Signing a release will in most cases bar you from bringing any further legal claims against your employer relating to your termination.

If your employer does offer you a severance package, it may impose a deadline by which to receive your response.  Keep in mind, that regardless of whether you accept this package by the deadline or not, your employer remains obligated to provide your minimum notice and or severance entitlements as set out by the applicable employment legislation.  You may also have additional rights to common law notice by bringing a wrongful dismissal claim.

Don't rush into signing anything, as your entitlements may be far greater than what is being offered to you in this severance package. Your lawyer can review your employer's proposal with you to help you determine whether it is reasonable in the circumstances.

While you may feel pressured by the looming deadline, keep in mind that an employer will quite often agree to a reasonable extension in time so that you can properly review the offer, understand its implications and consider your legal options.

And besides, you don't work for them any more. They don't get to give you arbitrary deadlines any more.  

3.  Get legal advice and carefully weigh your legal options

It is important that you seek legal guidance upon your termination to discuss whether you should consider taking legal action against your former employer.

A lawyer will review your employment history, the context leading to your dismissal, and any severance offers that have been proposed to determine:

(i)                 Whether it is a good idea to attempt to negotiate and/or bring a claim against your former employer;

(ii)               The nature and potential value of such a claim;

(iii)             Which forum you should consider proceeding in;

(iv)              The merits of your claim, and the legal obstacles to be aware of;

(v)                The general process, time frame and legal costs involved;

Be prepared with a copy of your termination letter as well as a copy of your original and most recent employment contract. These documents will be very telling to your lawyer with respect to what your entitlements may be.

While you certainly do not want to rush into taking any legal action, it is important that you consult with a lawyer in a timely manner as there are limitation periods, in other words deadlines, applicable to when you may be able to bring a claim, that vary depending on the nature of your claims.

4. Don't ever file an Ontario Employment Standards complaint before you have consulted with your lawyers

This part is simple. 

Under section 97(2) of Ontario's Employment Standards Act, an employee who files a Employment Standards complaint alleging an entitlement to termination pay or severance pay may not commence a civil proceeding for wrongful dismissal that relates to the same termination or severance of employment.

In other words, if you go the Employment Standards route, you give up your ability to claim damages in court for wrongful dismissal.  That could cause a significant loss of your entitlement to compensation, particularly if you were a longer-term employee.  

So get qualified legal advice first.

  

5.  Start your job hunt 

The very purpose of a severance package that may be offered to you is to support and assist you through the transition period, as you look for a new job.

It is important that you appreciate that if you make a claim for damages for wrongful dismissal, you have a duty at law to take reasonable steps to look for new employment to try to mitigate your losses.  Depending on the circumstances, starting your own business, or going back to school may also be considered reasonable steps to mitigate your losses.

Bear in mind that since the objective of severance payments is to compensate you for your income losses during a reasonable notice period, if you are successful in finding a new job and mitigating your losses, the income that you earn may be deducted from what your former employer would otherwise have to pay you.

6.  Keep detailed records of your job search

Given its importance in your claim, it is best practice to keep records and logs of your job search, including the dates on which you search, the hours you spent looking, the websites you have visited, the recruiters or employment agencies you consult and details and documentation showing all jobs yo apply for and all interviews granted.  

Keep copies or screenshots of all job applications and cover letters you send, rejection letters you receive and all job offers advanced to you, even if you don't accept them.

7.  Take advantage of resources available

Thankfully, there are resources available to assist you both financially and emotionally through your dismissal.

Perhaps the most well known resource for those who qualify is Employment Insurance ("EI"), which can provide temporary financial assistance.

Again, it is important to remember that your employment law claim is meant to compensate you for actual wages lost during a reasonable notice period.  As a result, if your former employer subsequently agrees to compensate you for a period of time during which you have already received EI benefits, you may be required to pay back the EI dollars that you have received. 

This is commonly referred to as the EI clawback.

The Ontario government has a number of programs in place to assist employees who have been dismissed from their jobs transition to new roles:

• The Second Career program provides financial support to allow you to obtain further education to pursue a new career in demand. For more information, visit: https://www.ontario.ca/page/second-career

• Through the Adjustment Advisory Program, you can meet with a support group and with an adviser to discuss how best to land on your feet following a company layoff or plant closure. For more information, visit: https://www.ontario.ca/page/adjusting-after-job-loss

Finally, as part of your severance package, your former employer may agree to pay for private services that provide vocational counseling and outplacement.

There is a silver lining that comes with your dismissal from employment. You are presented with an opportunity to start a new chapter in your life that better reflects your career goals and overall life objectives. Consulting with a lawyer, financial adviser and career counselor can often help you make this transition more seamless. 

- Simran Bakshi, Associate Lawyer, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday October 4, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Oct 4, 2016 at 7:15am PDT

In 2015, an Ontario Court awarded 27 months’ of pay in lieu of reasonable notice to a 65-year-old civil engineer who had been employed for 40.66 years.

In exceptional circumstances involving extraordinarily long-service employees, it is within the discretion of Ontario Courts to award more than 24 months’ damages.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

LawFact of the Day: Employment Law

Here is your daily LawFact from Wise Law for Tuesday July 12, 2016. Today we are talking about Employment Law.

A video posted by Wise Law Office (@wiselaw) on Jul 12, 2016 at 6:38am PDT

The amount payable to wrongfully dismissed employee depends on the length of employment, age, salary and several other factors.

It can be as much as one month for each year of service, or even more in exceptional circumstances.

- Garry J. Wise, Toronto

Visit our Toronto Law Office website: www.wiselaw.net

Ontario Employment Law: Disability and Frustration of An Employment Contract

Frustration of an employment contract occurs when, through no fault of either party, an event occurs that makes the contract impossible to perform.

Under Ontario law, where an employee is suffering from a permanent disability with no reasonable prospect of returning to work in the reasonably foreseeable future, frustration may arise. Where frustration occurs, both the employee and the employer are relieved of their obligations, the employment contract has come to a lawful, albeit unfortunate, end and no damages may be awarded for wrongful dismissal.

If an employer can demonstrate that such disability has created a frustration of the employment contract, the employer may lawfully terminate the employment, simply by providing the employee with the required severance entitlements as spelled out in the Ontario Employment Standards Act.

But, unsurprisingly, it's not quite that simple. A number of factors will be canvassed by a court that is considering whether the doctrine of frustration applies.

Is a Disability Permanent ? - Employers' Due Diligence Obligation

In Naccarto v. Costco, decided June 15, 2010, the defendant employer, Costco, sought to rely on the doctrine of frustration in defending against a wrongful dismissal claim launched by a thirty-seven year (37) old Return-to-Vendor Clerk who had been terminated from his employment after seventeen (17) years of service.

In the case, the Plaintiff, Mr. Naccarto, commenced a medical leave arising from clinical depression. At the time of termination, Mr. Naccarto had been on a medical leave for over five years.

The Defendant employer relied on the following, in support of its decision that the employment contract had been frustrated, giving it the right to terminate the Plaintiff's employment:

1. The Plaintiff's long and continuing absence from work, which equated to a period of five years;


2. The Plaintiff had been in receipt of long-term benefits which require a finding of "total disability"; and


3. The statements of one of the Plaintiff's doctor that he did not know when the Plaintiff's medical condition would improve and did not know when he would be able to return to work

According to the Defendant, this demonstrated that the Plaintiff was "permanently disabled" and could not fulfill the basic obligations he owed as employee for the foreseeable future, justifying its decision to terminate him.

The Court underlined that the "burden" is squarely on the employer to prove frustration of contract, turning immediately to the medical evidence:

The law with respect to the burden of proof on an employer to establish a frustration of contract has been very well set out by Justice Perell in the case of Dragone v. Riva Plumbing Limited, 2007 CanLII 40543 (ON S.C.), 2007 CanLII 40543 (ON. S.C.). In that case, the employee had been absence from work due to illness for a period of approximately fourteen months. The evidence was that the employee did not know when she would get better, but that based on the evidence there was at least hope that she would eventually be able to return to work. The Court found that a permanent incapacity to return to work had not been proven. Justice Perell found that the onus was on the employer to prove that the contract had become frustrated and that it was not the employee’s onus to provide medical evidence with respect to her ultimate prognosis.

In this case, although the duration of the illness is significant, a period of five years, the medical evidence does not support a finding that there is no reasonable likelihood of the employee returning to work in reasonably foreseeable future. Rather, the evidence is that the employee is still being treated by his doctor as a new psychiatrist is being sought.

Costco could have followed up with the doctor to ask further questions with respect to the likelihood of a return to work in the foreseeable future, but it did not do so. Costco has not, in my opinion, provided this Court with the necessary medical evidence to support a finding that it is unlikely that Mr. Naccarato will be unable to work in the reasonably foreseeable future.

In other words, an employer has a "due diligence obligation." It must satisfy itself on a reasonable basis as at the time of termination that the medical documentation supports a finding that "there is no reasonable likelihood of the employee returning to work in the reasonably foreseeable future."

If the medical evidence is negative or equivocal on this crucial point - as in the case under discussion - then frustration may not have been proven by an employer.

The fact that the plaintiff employee was on long-term disability benefits which required "total disability" did not necessarily mean he was "permanently disabled" as defined by the common law, for the purpose of applying the doctrine of frustration.

Is the Absence Disruptive to the Employer's Operation?

Turning to another frustration of the employment case, Dragone v. Riva Plumbing Ltd. [1999] O.J. No. 1543 (Gen. Div.), Pollack J. considered another factor, namely whether the nature of the services performed by the plaintiff employee in the case were integral to the organization, straining against a very long-term of absence being required for a finding of frustration:

. . . To determine if a contract has been frustrated, regard must be had to the relationship of the term of the incapacity or absence from work to the duration of the contract, and to the nature of the services to be performed.

In this case, the plaintiff employee's minor role in the organization meant that his long absence had not been a disruption to the Defendant Costco's business. He was easily replaced in his period of absence and no direct or substantial losses accrued to the corporate Defendant as a result of such absence.

Given the two above factors, Justice Pollock found that "frustration" had not been established in the case. Nevertheless, the court considered a further argument put forward by the Plaintiff:

Mr. Naccarato further argues that there is a trend of our courts to refuse to apply the doctrine of frustration of contract in situations where the employee is entitled to receive short-term and long-term disability benefits due to illness. The submission is made that as such benefits are provided by the employer, it cannot be said that the event of the employee’s illness is something that was not reasonably contemplated by the parties. The frustration of contract must be delayed until the expiration of the period during which the benefits are provided for by the employer. Costco’s response to this argument is that what is not within the contemplation of the parties is the duration of the employee’s illness and not the fact that the employee may get ill.

Justice Perell, in the Dragone case, considers the effect of the presence of the long-term sick leave and disability benefits:

The presence of long-term sick leave and disability benefits indicates a greater tolerance for the duration of an employee’s absence before frustration occurs. Indeed, it has been suggested that contracting for these benefits may postpone the time of frustration because it may be inferred that the contracting parties anticipated that the employee might take leave for illness. See: Antonacci v. Great Atlantic & Pacific Co. of Canada, [1998] O.J. No. 876 (Gen. Div.), aff’d. In part [2000] O.J. No. 280 (C.A.); E.E. Mole and M.J. Stendon, Wrongful Dismissal Handbook (3^rd ed.) (Markham: LexisNexis Canada Ltd., 2004), chapter B-4.”

An Open Question: Implications of An Employer's Provision of Disability Coverage

Justice Pollock's reasons leave open the question (raised in the Plaintiff's submissions) of whether or not a Defendant employer who offers an employee both long-term and short-term disability is barred from relying on frustration of the employment contract, for reason that it has contemplated the possibility of the Plaintiff's illness leading to a long leave of absence and essentially has contracted for it. He also leaves the question (also raised in the Plaintiff's submissions) of whether frustration of contract can only arise at the end of the period of benefit receipt by a Plaintiff employee, like Mr. Naccarato, for another day.

As a result of his rejection of the employer's defence of frustration, Justice Pollock finds that Mr. Naccarato was wrongfully dismissed, awarding him ten (10) months of pay in lieu of reasonable notice in view of his relatively young age of thirty-seven.

If you believe you have been wrongfully dismissed, please contact a lawyer who can advise as to your rights and entitlements both under the Ontario Employment Standards Act and at common law.

- Robert Tanha, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

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Ontario Employment Law: Deemed Wrongful Termination Under The ESA, But Damages Calculated At Common Law

In Elsegood v. Cambridge Spring Service, decided on December 20, 2010, the Ontario Divisional Court heard an appeal from a Small Claims Court ruling that brought the relationship between the Ontario Employment Standards Act, in particular its "deemed termination" provisions relating to lay-off, and the common law rules governing quantum of damages for wrongful dismissal to the fore.

In the case, numerous layoff periods had been imposed against the Plaintiff employee's will; no single period of which ran afoul of the Act. The relevant provisions provide as follows:

What constitutes termination

56. (1) An employer terminates the employment of an employee for purposes of section 54 if,

(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing him or her;

(b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response to that within a reasonable period; or

(c) the employer lays the employee off for a period longer than the period of a temporary lay-off. 2000, c. 41, s. 56 (1).

Temporary lay-off

(2) For the purpose of clause (1) (c), a temporary layoff is,

(a) a lay-off of not more than 13 weeks in any period of 20 consecutive weeks;

(b) a lay-off of more than 13 weeks in any period of 20 consecutive weeks, if the lay-off is less than 35 weeks in any period of 52 consecutive weeks and,

(i) the employee continues to receive substantial payments from the employer,

(ii) the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insurance plan,

(iii) the employee receives supplementary unemployment benefits,

(iv) the employee is employed elsewhere during the lay-off and would be entitled to receive supplementary unemployment benefits if that were not so,

(v) the employer recalls the employee within the time approved by the Director, or

(vi) in the case of an employee who is not represented by a trade union, the employer recalls the employee within the time set out in an agreement between the employer and the employee;

While the Court agreed with the Plaintiff employee, that prolonged periods of layoff amounted to a "deemed termination" of employment for the purposes of section 56, the question of how to calculate the wrongfully dismissed Plaintiff's employee's damages created some disagreement between the parties.

The appellant employer took the position that since the "termination" had arisen by operation of the Act, damages should be calculated in accordance with it. The respondent employee took the position that he was entitled to pay in lieu of reasonable notice at common law. The Court ultimately agreed with the latter position, reaffirming what at this point in Ontario's employment law history must be viewed as trite law:

I do not read the Act or the case law referred to me as restricting the calculation of damages in this fashion. Rather, the Act merely sets out the minimum to which an employer is exposed in the event of termination without adequate notice, and does not create a ceiling for damages in this field.

If you believe you have been wrongfully dismissed, whether by prolonged layoff or otherwise, please contact a lawyer who can advise as to your rights and entitlements both under the Ontario Employment Standards Act and at common law.

- Robert Tanha, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

TORONTO EMPLOYMENT LAW • TORONTO CIVIL LITIGATION & ESTATE LITIGATION • TORONTO FAMILY LAW & DIVORCE

ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG