Toronto Employment Lawyer

Insurance Company to applicant; According to your Facebook photos, you don't look too depressed to work.

By Brian Norris

After being notified that her long-term sick leave benefits were being discontinued, Nathalie Blanchard might be reconsidering her use of the networking site, Facebook. In a recent CBC news piece, Ms. Blanchard claimed her insurer asserted she was "available to work, because of Facebook". 

Issues arose when Blanchard, off work after being diagnosed with depression, published photos on her Facebook page showing her having a good time at several events including a Chippendales bar show, her birthday party, and vacationing on a sunny beach.

As always, employees need to take notice of this example and previous ones and reconsider the what they publish on the social networking sites.

Brian Norris is the office manager at Whitten & Lublin LLP, an employment law office providing counsel to both employers and employees on a wide range of workplace law matters.

Tribunal Awards $35,000 to fired pregnant employee

The Human Rights Tribunal of Ontario recently reported the decision in Maciel v. Fashion Coiffures, siding with the applicant who was terminated immediately following the announcement of her pregnancy. 

The press release by the Human Rights Legal Support Centre indicates that Vice Chair Naomi Overend noted Ms. Maciel's vulnerability in her decision by outlining that "She was young, just out of school, and coping with an unplanned pregnancy. This was to be her first full-time job, which she testified she was very excited about, making the experience that followed that much more distressing."

Follow this link to the Globe & Mail article on Ms. Maciel's ordeal.

A copy of the decision can be found by clicking on the link below.

Download Maciel v Fashion Coiffures doc

Whitten & Lublin is an employment law firm providing counsel to both employers and employees on a wide range of employment law issues.

Women Lead Economic Recovery

By Sarah Diebel

According to recent statistics tracking the latest jobless numbers, women are rebuilding their families' finances and the Canadian economy. In September, growing numbers of women entered the workforce, while more men joined the ranks of the unemployed.

Despite what appears on its face to be a surge of female dominance in the new marketplace, it is important to note that hiring practices are not discriminating against male applicants. Economists claim that women are willing to accept lower paying jobs in order to support their families, while men typically hold out for higher compensation.

Gender generalizations aside, statistics show public sector growth and private sector losses. So, until men dominate the health care field as opposed to manufacturing, we can expect further "she-covery" according to Chaya Cooperberg, the author of a recent Globe & Mail article available here.

Cumulative changes amount to constructive dismissal

Daniel A. Lublin, Toronto Metro News
Wednesday, July 18 2006

"Not many men have both good fortune and good sense."
- Titus Livy

John-Louis Drapeau was the consummate company man.  But when his job was gradually eroded, his loyalty quickly turned to fury.  Believing that his demotion was tantamount to a dismissal, Drapeau fled and then proceeded to sue his ex-employer.  His beliefs were vindicated at trial.

While the law of constructive dismissal is fact driven, employees can glean valuable advice from this case:

• courts don't confine the doctrine of constructive dismissal to a single or readily identifiable change to an employee's job.
• when changes are imposed, not every employee can simply pack up and place a call to their lawyer.  The changes must be obvious, negative and substantial - and must be so in the eyes of the judge, not just the litigants.
• An employee who consents to or condones significant changes can cry foul if the aftermath proves less than desirable.  Some form of protest must be registered. 
• employees with valid grievances may even have to remain in the altered job or risk failing to mitigate damages.  In order to unavail employers of this defence, counsel should always be consulted.

Click here for the entire article "Cumulative Demotion leads to Success in Court"

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

Blunder Procedure and Pay the Price

Unionized employees have little recourse to the courts

Daniel A. Lublin

Toronto Metro News, Wednesday, July 11, 2007

When Garry and Mark Coleman heard that fellow employee Wayne Demers was planning to file a fraudulent insurance benefits claim, they blew the whistle to their employer.  Demers was immediately fired.  Then, in typical union fashion, hostility brewed among Demers' former union brethren.  When that hostility escalated into fear, the Colemans resigned.  Months later, with their jobs gone and their reputations in tatters, they turned to the courts instead of their union to grieve their alleged wrongs.  Their decision proved fatal to their case. 

As is the typical problem with unionized employees proceeding to sue in court, they should approach jurisdictional issues practically.  Chances are that the court will not entertain their grievance and will instead, order that the matter was better heard in front of an arbitrator - usually after it is too late.

For more, click to to read the entire article - "Blunder Procedure and it could cost you"

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of Wrongful Dismissal.  He can be reached at www.toronto-employmentlawyer.com 

Exceptions to Signed Contracts

Anything goes into employment contracts
-- but not all written contracts are enforced

Daniel A. Lublin, Toronto Metro News
Published Wednesday June 27, 2007

Written employment contracts represent employment law's most ambivalent feature.  Here are the top 5 ways to opt out of a signed deal:

• illegality
• ambiguity
• lack of consideration
• duress or unconscionability
• Changed Substratum

Click to read the entire article, "Employment Contracts Can be Broken".

Daniel A. Lublin is a Toronto Employment Lawyer, specializing in discipline and dismissal.  He can be reached at dan@toronto-employmentlawyer.com 

Permanent Illness can put your Career at Risk.

Frustrating the Employment Contract

Daniel A. Lublin, Metro Toronto News
Published Wednesday June 20, 2007

Employers are entitled to expect their employees to show up for work.  Without a valid reason, employees who don't show up are subject to dismissal without pay.  Temporary illness, however, usually proffers that valid reason.  But what of the employee who's disability renders her unlikely to ever return to her job?  As Terry Ann Wilmot recently learned, illness is not always a shield from dismisal. 

To read the full, published, column, click "Long-Term Illness can Risk Career".

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of discipline and dismissal.  He can be reached at dan@toronto-employmentlawyer.com or through his firm's website www.toronto-employmentlawyer.com 

Employees Need to Combat Warning Signs for Dismissal

Daniel A. Lublin
Toronto Metro News, June 13, 2007

With no legal entitlement to continued employment, Canadian employees decry that the law of dismissal favours their employer.  Employer, however, don't have a magic bullet for liberating themselves from unsatisfactory employees; most mistakes are made by the employees themselves.

Read "watch for the warning signs of dismissal" for the top five errors that employees can make in response to discipline at work -- and what they ought to do instead.

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of discipline and dismissal.  You can reach him at dan@toronto-employmentlawyer.com or via his website www.toronto-employmentlawyer.com

Off Duty Conduct Can Affect the Health of Your Career

Daniel A. Lublin, Toronto Metro News
Published June 6, 2007

Employees who believe that their conduct away from the office is immune from discipline are mistaken.  Employers have the technological means and occasionally the inclination to monitor behaviour that occurs away from the job. And where off-duty behaviour poses a problem, don’t be surprised when it follows you back to your desk.

Read the entire article Off Duty Actions Can Affect Your Job

• Criminal behaviour unrelated to the workplace but which nonetheless injures an employers interests can amount to cause for dismissal.
• Off-duty conduct that casts doubt on your honesty or the ability to perform your job can be cause for dismissal.
• When the public’s safety is in issue, your personal business becomes your employer’s problem.
• Where off-duty conduct creates a serious conflict of interest with the work of the organization, employees may successfully be fired for cause.

Despite these examples, proving just cause often remains a daunting task for employers. Both they, and their employees, should gauge the following rules.

1. Proof of misconduct may not be present, but it seldom matters if it is conduct that is, or is likely to be, ruinous to the interests or reputation of the employer.
2. Proving just cause for dismissal is more likely to be successful if there are negative public consequences or unfavourable publicity brought on as a result of off-duty conduct.
3. Off-duty behaviour that renders other employees unwilling to work with the perpetrator can be grounds for immediate dismissal.

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

Unionized Employees Have No Hope In Court

Employment Law Question sent to me:  Is it possible to seek outside representation if one is a Unionized employee?

For the most part, you cannot sue your unionized employer in court; you must exhaust the grievance procedures provided in the collective agreement. 

Unionized employees need to consult with their union representatives.  An employment lawyer can supplement the opinion you are given, but generally he or she cannot take legal action on your behalf.  In appropriate cases, an employment lawyer may be able to take on a supervisory role with respect to a grievance or legal issue you have.   

Despite these restrictions, there are legal certain claims that a court will entertain even though they arose in the unionized environment.  Claims for wrongs such as sexual harassment, or defamation, may be brought in the courts, by a lawyer.  But you risk the court declining jurisdiction if the judge feels that it is better dealt with by an arbitrator, appointed pursuant to the collective agreement. 

Best of luck,
Daniel Lublin

For more employment law question and answers, see my column at www.executiveassistance.com