Toronto Employment Lawyer

Daniel A. Lublin, Toronto Employment Lawyer, wins suit without calling a single witness

In a recent Ontario Superior Court decision, Adjemian v. Brook Crompton North America, 2008 CanLII 27469 (ON S.C.), Daniel A. Lublin successfully argued for and won a Motion for Summary Judgment, effectively winning the case without calling a single witness.

As reported in the Canadian Cases on Employment Law (67 C.C.E.L. (3d) 118), Justice Perell awarded a judgment in favour of Ms. Adjemian for damages stemming from her wrongful dismissal amounting to $61,944.65 plus pre and post judgment interest and legal fees.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.

Temp and Part-Time workers more likely to develop work-related health problems

Toronto's Centre for Addiction and Mental Health has recently released findings from a study that indicate temporary and part-time employees are more susceptible to develop physical and mental work-related health problems than their full-time counterparts.

In a recent column, Cynthia Ross Cravit  addresses the study as well as the World Health Organization's recent commission on social determinants of health titled Closing the gap in a generation: Health equity through action on the social determinants of health.

The results of the study on part-time and temporary workers health issues are not entirely surprising. Most part-time and temp employees receive limited training and often, do not qualify for workplace health benefits.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.

Lap dances for legal fees leads to suspension

Scott Erwin will soon begin serving a bar imposed 15 month suspension for conduct stemming from a bartering agreement in which the Illinois attorney accepted lap-dances from his exotic dancer client in exchange for a reduction of legal fees.

In the United States, bartering legal fees for other lawful services is a legitimate way to satisfy an account. However, in Erwin's case, his client had made accusations with local authorities that he inappropriately touched her during the exchange.

Authorities were not satisfied with the evidence to lay a charge against the lawyer. The Illinois bar then conducted an investigation which led to Erwin's suspension.

Erwin's matter can be an excellent reminder to professionals everywhere that, although an act or agreement may technically be legal, it might be in your best interest to use some common sense when making such agreements.

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.

Class action lawsuits on the rise, but claimants should be wary

“Greatness lies not in being strong, but in the right use of strength." - Henry Ward Beecher

It’s workplace law’s newest, and biggest, phenomenon: lawyers specializing in class action lawsuits, joining together groups of employees with similar legal claims. But mass justice may come with a price: employees, excited by the prospects of multi-million dollar settlements, unaware that their interests may not be aligned.

Don’t misunderstand. If you are one of the thousands of Canadian employees with claims for overtime, unpaid wages or pensions, joining a class action lawsuit makes sense. Pursuing the matter on an individual basis is neither cost-effective nor does it garner the same attention from your ex-employer as a $600-million lawsuit on behalf of 10,000 employees would, such as the suit the CIBC currently faces for unpaid overtime. With the potential of recovering seven-figure damage awards and moving their case's coverage from this column to the front page of the news, the temptation to sue as a group is difficult to resist.

However, with recent workplace class action lawsuits for overtime and unpaid wages sharing national headlines with large scale downsizing and layoffs, class action lawyers have been sharpening their pens, taking aim at mass wrongful dismissal actions. But not so fast. In wrongful dismissal suits, where the individual facts of each ex-employee’s claim determines its ultimate merit, a class proceeding may be a mass mistake. Here are some of my concerns:

• Not all class action lawsuits actually proceed. Class action firms spend great time and expense attempting to have the case certified by a judge. Some linger uncertified for years. For overtime claims, such as the CIBC case, which is still pending, most employees remain at their jobs or have found others. But in wrongful dismissal cases where the plaintiffs are unemployed, there is a need for speedy settlements or quick summary judgments.

 

• How will settlement monies in class action wrongful dismissal suits be appropriately distributed? As the Supreme Court recently confirmed in the Keays case, damages for wrongful dismissal should be adjusted upwards or downwards based on the unique individual circumstances of each plaintiff, such as any particular reason that would cause one person to take longer to find another job. 

 

• Mass lawsuits for wrongful dismissal may also create conflicting interests within the members of the class. There will be instances where some ex-employees should settle their claims, such as where re-employment is certain, while others should hold out for a better deal. 

 

• How will legal fees be equitably distributed? Class action lawsuits pay lawyers based on a percentage of recovery. However, in a class action setting, the work performed for each claimant is, in part, a duplication of the work performed for the group. Further, if the lawyers are paid based on a percentage of recovery for the group, what incentive do they then have to really consider the unique circumstances facing each plaintiff?

In a mediation that I did last week, I represented five employees who are suing their ex-employer for wrongful dismissal. It is not a class action suit, but I have advanced their claims as a group, though each employee has a separate claim. The mediator, one of the best known in Ontario, remarked that my clients were smarter to fight as a group rather than to stand alone. “There is strength in numbers”, he argued while attempting to assure us that the employer could not ignore five simultaneous claims.  He was correct.

Although the case did not settle, we made our point.  If we could sue individually but proceed as a group, what incentive do we have to join a class action?

Daniel A. Lublin is an employment lawyer focusing on the law of dismissal. He can be reached at dan@toronto-employmentlawyer.com.

 

KPMG class action settled

Major accounting firm KPMG has recently settled the class action lawsuit launched on behalf of employees who claimed damages for unpaid overtime.

The settlement, expected to be worth about $10 million dollars, was announced last week. Employees now have until September 30th to claim their portion of the settlement.

Unfortunately for the employees affected by the claim, they now have another hurdle to jump before they can recoup damages. The employees must now prove that they fall into the class that has been awarded the damages.

As I 've stated in my previous post regarding the current Scotiabank and Bell Canada mass torts, a class action lawsuit, while appropriate for overtime and pension claims, may not always be in the best interest of the plaintiffs or may not be particularly practical in mass dismissal claims.  In wrongful dismissal claims, class actions habitually fail to consider the individual employee's mitigation efforts, they regularly force a broad application of the Bardal principles, and there is often a duplication of work on client files. 

Daniel A. Lublin is a Toronto Employment Lawyer focusing on the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

American meatpacking plant fires Muslim workers for unauthorized prayer breaks

A dispute between Muslim workers and a Nebraskan meat packing plant regarding employee breaks has recently made national and international news headlines.

The JBS Swift plant is in hot water after the termination of what is reported to be around 100 workers who took unauthorized breaks from work for their Ramadan prayers. The plants decision to terminate the employees has news message boards across North America abuzz, reigniting the debate regarding the accommodation of religious practices in the workplace.

The workers and management were to mediate their issues on Sunday (September 21st) however, no results of the meeting have been made pubic yet.

Workers in Ontario have the option of filing a complaint with the Ontario Human Rights Tribunal.  Click here for the Tribunal's website. 

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Don’t be too quick on the trigger with the send button.

As reported by the Toronto Star, Rick Sullivan sent an email to pal Jason Wade regarding rumours about former co-worker, Ronald Harrington.  The contents alleged that Harrington was dismissed from his previous employment for “cooking the books”. Wade, director of operations for WesTower, Harrington’s new employer, shared the email with Harrington. The email was eventually shared with George Patton, Harrington’s previous employer and the person Sullivan alleged to have fired Harrington.

Harrington claimed that the contents of Sullivan's email were defamatory and resulted in stress and panic attacks. The suit was settled out-of-court for about $7,800.00.   

The underlying principle of this matter is that sending a malicious email, even if only addressed to one person, can have a much broader touch that ever imagined.  Many people who use email do not consider that the service essentially keeps a written record of all correspondence. As Harrington did, many of my clients often rely on email records to support their claim.

The lesson learned here, as I have mentioned in my weekly column several times, when dealing with electronic communication, employees and employers should always observe the following advice;

1. Thoroughly review and follow any workplace computer and Internet misuse policies.
 
2. Exercise caution when communicating with or providing advice to clients or colleagues.   

3.  Allow common sense to prevail.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Fired Bell managers mass tort may be a mass mistake

Bell Canada's recent decision to lay off 2,500 managers has caught the attention of several lawyers who specialize in class-action suits, as reported in the National Post on Wednesday.  This has left me wondering, is a class-action suit the best way to address the dismissed managers' needs?

Class-action lawsuits at times, make litigation easier for those involved. It groups plaintiffs jointly under an umbrella of similar facts and their claims are argued together as one.  The process first involves certifying a group of applicants and then bringing a claim.  If successful, Plaintiffs then receive damages paid from the entire settlement or judgment, as the case may be.

I believe, however, that employment law claimants may be better served with individual actions for wrongful dismissal, instead of joining a class action lawsuit.  Here are some potential problems that I see:

a.  Mitigation: How will the differences in each claimants mitigation efforts be dealt with in the class action lawsuit.  Although, I suspect, the differences may be dealt with by way of allocating damages or settlement monies, I find that Plaintiff's need to receive specialized and fact specific advise in respect of their mitigation efforts, as opposed to more uniform advice they may receive in a class setting.

b.  Notice Periods: How will the individual differences between each Plaintiff in a class suit be adjusted in respect of the appropriate notice period?  As the SCC recently confirmed in the Keays v. Honda case, the Bardal analysis, which considers age, tenure, type of job and availability of comparable employment, among other facts, is still the dispositive test.  Accordingly, how can Plaintiff's in a class setting ensure that their individual characteristics have been considered, as opposed to being lumped into a category of Plaintiff's, in the class, that happen to have similar characteristics?  For example, although three of the Bardal factors may allow Plaintiff's to be lumped into a category, I would argue that the availability of comparable employment analysis requires an assessment of a Plaintiff's circumstances on an very individual basis. 

c.  Legal fees:  Class action lawsuits pay lawyers based on a percentage of recovery, in most cases.  However, in a class action setting, the work performed for each claimant is, in part, a duplication of the work performed the group.  While duplication of work is usually written off or discounted in an individualized plaintiff setting, this is probably not done to the same degree for class actions.  Further, if the lawyers are paid based on a percentage of recovery for the group, what incentive do they then have to really consider the unique circumstances facing each Plaintiff?

Daniel A. Lublin is a Toronto Employment Lawyer focusing on the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com

Daniel Lublin, Employment Lawyer, in National Post

Rogers beverage service provider Aramark, has taken an official position that they will not reinstate legendary beer vendor, Wayne McMahon.

Click here for video highlights from Wayne's press conference yesterday, thanks to our friends at the Toronto Sun.

Or

Follow this link to the National Post's article on Wayne's story.

Daniel A. Lublin is an employment lawyer practicing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or through his website www.toronto-employmentlawyer.com.

Employers limiting limitations; Where's the consideration?

American employers have begun to ask new employees to sign a waiver which effectively reduces the limitation period for employment law claims to 6 months after the loss.

Our friends at Law.com recently reported how DaimlerChrysler Corp. won a battle to enforce such an agreement. Mee Sanders was denied portions of her claim against her union and ex-employer because the Court ruled that Sanders waived her legal right to a 2 year limitation period when she applied for the position, thus reducing it to a 6 month limitation period.

The clause that Chrysler relied on, shown below, is brought to the attention of all applicants during the job application process.

In consideration of Chrysler's review of my application, I agree that any claim or lawsuit arising out of my employment with, or my application for employment with Chrysler Corporation or any of its subsidiaries must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit. While I understand that the statute of limitations for claims arising out of an employment action may be longer than six (6) months, I agree to be bound by the six (6) month period of limitations set forth herein and I WAIVE ANY STATUTE OF LIMITATIONS TO THE CONTRARY.

In Canada the enforcement of a similar clause is doubtful.  Canadian courts will not enforce contractual clauses that provide employees with less than their statutory entitlement.  In other words, if the clause is viewed as illegal, it is void for public policy reasons. 

While Canadian employees can agree to limit their entitlements to less than they would receive had there been no clause in their contract, there are still various tests that must be met in order to enforce such a clause. 

Daniel A. Lublin is a Toronto Employment Lawyer practicing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com