Wrongful Dismissal and Employment Law Blog

Embellishing what’s on your resume? Think twice. It could get you fired.

danlublin — Tue, 15 May 2012 20:22:03 +0000

Studies reveal that resume falsification is a common event. Statistics suggest that as many as 50 percent of all resumes contain some degree of distortion. While it is natural to expect that some form of embellishment on resumes will occur, there is a big difference between accentuating your strengths and creating new ones altogether. When it comes to full blown lying on your resume, the truth is that you can be fired.

That is what Yahoo and its current CEO Scott Thompson learned last week when it was widely reported that he did not earn the computer science degree that his resume claimed.

In an article written in the Metro, Daniel Lublin tells the story of “Doctor” Richard Clark who applied for a job as a consultant with Coopers & Lybrand where in his application for the job, he represented that he had a PhD in applied mathematics, which helped him land the job. A few years later, Cooper learned that Clark did not hold this degree and fired him immediately; arguing he would have never been hired had the firm known the truth about his resume. Clark sued but later lost; as both a trial judge and the Ontario Court of Appeal concluded that Clark could not benefit from his own wrongdoing.

Lying on your resume may leave you looking for a new job and there are some legal points that courts will consider. One of the previous articles written by Daniel Lublin tells you more about this and you can read about it here.

The law implies that not every act of dishonesty can lead to termination. Often, context can come before content and a mere error in judgment can be overlooked. However, when it comes to a resume, it’s still best to stick to the truth.

How should employers address employee underperformance?

danlublin — Fri, 11 May 2012 13:54:08 +0000

In an uncertain situation when a new recruit cannot perform well despite training, patience and investment in their performance, employers generally have 3 options:

1. Terminate the employee and pay the price of their severance price tag, which can be expensive in Canada given the current legal test, which assesses what is fair having regard to the employee’s age, tenure and service;

2. Terminate the employee and take the position that their under-performance was cause for dismissal, which is extremely risky since the courts generally do not accept that alleged under-performance is legal cause to terminate employees without pay;

3. Work with the employee in the hope that they improve – which can work in some cases but may fail many others. The problem with this approach is that it takes time, effort and further training and the employee still may not improve.

The Metro recently published an article written by employment lawyer Daniel Lublin on this matter regarding the options that employers can take to deal with employee under-performance and incompetence. For more tips on those options, you can read full article here.

How to Protect Yourself from Bogus Legal “Experts”?

danlublin — Tue, 08 May 2012 16:23:34 +0000

How do you find the right lawyer, among thousands? The latest article in the Globe and Mail, report on business, written by Daniel Lublin provides useful information on how to choose the right employment lawyer and what to be aware of when booking with one. Here are some points to consider:

Would someone work for free? Most good lawyers charge for their time. If you are getting legal advice for free, you should question the source.

Assembly line lawyers. Does your lawyer run an “assembly line” trying to settle cases as quickly as possible? According to the article, you should ask for your lawyer’s last 5 reported court cases in order to determine if he actually takes cases to trial, or just says that he does.

Is your lawyer a procrastinator or do they do too much work? In workplace law, speed is important since employee’s cases get worse as time goes on, not better. Make sure your lawyer sticks to a timetable of what will be accomplished.

Online advertising. This can sometimes be a scam. Lawyers can pay for high ranking spots on the web, that have no regard to their actual merit. For instance, the article mentions that a particular lawyer was listed as a top “employment lawyer“, “divorce lawyer” and “immigration lawyer” which would be next to impossible since these areas are all specialized. Be careful not to hire a dabbler if you think you are getting a specialist.

Everything You Need to Know About Severance

Whitten and Lublin — Tue, 24 Apr 2012 00:42:34 +0000

An article written in the Globe and Mail by employment lawyer Daniel Lublin covers just about everything you need to know about severance. Below are a few myths the article dispels that might surprise you.

Myth #1: You are entitled to NO MORE than the statutory minimum

Unless you are a transient worker, or have signed a pre-negotiated severance amount in your employment contract, severance is negotiable, and you should almost never accept the first offer.

Myth #2: Severance is a straightforward calculation based upon length of employment

Rather, it is calculated based upon the length of time it would reasonably take an employee to find suitable work. Recently, the Ontario Superior Court awarded an employee 26 weeks compared to the 9 he was initially offered because of a grim likelihood of reemployment.

Myth # 3: Severance is yours to keep, even if you find a new job

Clauses are often present in severance agreements to prohibit what Lublin calls “double-dipping” – getting a paycheck while also receiving severance from your former employer.

Myth # 4: Poor performance effects severance

Unless you have been dismissed for cause, performance has nothing to do with severance and “both stars and incompetents should receive the same payouts if fired.”

Myth # 5: Employees are owed a “good reason” for dismissal

This is false. Employers are permitted to fire you just because they don’t like you, permitted (1) Their reason isn’t based upon a prohibited ground of discrimination, and (2) Proper notice or pay in lieu has been provided.

The full article is well worth a read, as it contains a more exhaustive list of often misunderstood facts about severance. It is important that you are financially comfortable while searching for new work. Knowing your rights will ensure that you get what you deserve.

Your Facebook Password for a Job

Whitten and Lublin — Sat, 31 Mar 2012 21:35:47 +0000

If you thought the worst question you could get at an interview was to explain one of your weaknesses, think again. You may have to look inwards even deeper and make a decision on how much privacy means to you, and if any job is worth giving it up.

An article on thestar.com tells the story of a man who, while being interviewed for a police job was asked for his Facebook password. Though taken aback, he offered to enter his password and leave the room. His interviewer asked again, and he reluctantly divulged.

If you hold your Facebook account (or any other social media website) close to your heart, this question might have startled, and even offended you. At the moment there are no laws that prevent employers from asking, but employment lawyer Daniel Lublin stresses that interviewees should not feel compelled to tell.

Lublin also suggests that interviewees consider the appropriateness of the question. For example, the field of law enforcement or political leadership might more easily justify the question, when compared to the retail industry. Since most of the public would likely view such a question as overly invasive, it is unlikely that it will become a commonly asked question in the workplace.

Before refusing to answer, interviewees should consider the reasonableness of the request. Employers should be aware of how such a question can be perceived by job candidates – though you may dissuade those with skeletons in their inbox, you may also discourage highly qualified candidates who object on principle.

Baby Boomer Decision Likely to be Echoed

Whitten and Lublin — Tue, 20 Mar 2012 05:52:11 +0000

The horde of baby boomers primed to leave the workforce presents difficult decisions for HR managers, the most prominent being if and how to terminate long-term employees. Though keeping them around can mean lower productivity, as Suzuki Canada recently discovered, letting them go can often be much more costly.

The case, Hussain v. Suzuki Canada Ltd. was recently heard in the Ontario Superior Court and should serve as a harbinger to employers considering a strategy of offering the minimum in severance to exiting long-term employees. Employment lawyer Daniel Lublin reviews this recent case in an article published in The Lawyers Weekly.

The plaintiff, Syed Hussain was an assistant warehouse manager for most of his 36 years with Suzuki, and intended to stay until retirement. When his productivity declined, Suzuki decided it was time to let him go. After spending his entire working career in Canada with Suzuki, Hussain’s prospects for finding similar employment within the industry were grim. Thankfully, he successfully sued for wrongful dismissal and was awarded 26 months severance (compared to the 9 he was initially offered).

The implications of this ruling are significant. Employers are no longer safe in assuming the cap for damages is 24 months – as the judge reasoned that the combination of factors made Hussain’s (and no doubt others to come) an exceptional one. Justice Roberts also made the judgment payable by lump sum, only nine months into the 26 month period, having evaluated the chances of Hussain finding suitable employment so low that he could instead garnish the total payment by 1%. This detail is extremely beneficial to employees, who could otherwise incur further costs proving mitigation of lost income.

Hussain v. Suzuki Canada serves to reinforce an existing trend in the courts to penalize employers for offering the minimum in severance. Given that we are still in the early stages of the baby boomer exodus, now is the time to strategize and think about exploring creative options.

An Age-old Problem in the Workplace

Whitten and Lublin — Sun, 04 Mar 2012 04:39:47 +0000

With the tidal wave of boomers entering their 60s, a surge in age discrimination is inevitable.

These were the words of employment lawyer David Whitten in a recent interview published on thestar.com. The workforce is aging, and just because you aren’t thinking about retirement doesn’t mean your employer isn’t thinking about making that decision for you. The problem Whitten paints in the article is that individuals facing age discrimination are often either unwilling to admit it to themselves or too afraid to ask for help – both scenarios end poorly.

He goes on to discuss that employers will often use shady tactics to dispense of older employees, like firing a few younger ones in order to cast a veil over a targeted larger group of older employees. In order to even the odds, Ontario law has taken on some employee-friendly changes. For example, we no longer have mandatory retirement, and employees can include human rights complaints within wrongful dismissal claims.

Employees can make these laws work for them by taking a few proactive measures. Employers are legally obligated to accommodate for age in the same way as they are disability. The caveat is that you have to tell them – preferably in writing; this way if you are fired for an age-related concern, you have evidence to support your triggering of the employer’s duty to accommodate.

It is important to set aside any feelings of pride or guilt and strike a dialogue with your manager to communicate your needs. If they choose to ignore your concerns, you have likely been the victim of discrimination and should contact a lawyer.

Bullying Brings Down Employees, and Bottom Lines

Whitten and Lublin — Wed, 15 Feb 2012 03:27:30 +0000

There’s a good chance a bully is blazing a trail of destruction in your workplace and that you’re unknowingly eating some very real costs. With a reported half of the workforce claiming to have witnessed or been a victim of workplace bullying, it’s a problem that you can’t afford to ignore.

David Whitten, partner of Whitten and Lublin, and a workplace bullying expert reviews some of the unfortunate side-effects workplace bullies can have on both the company and the individual in an article in the Globe and Mail.

He explains that the growing number of workplace bullies reported by the Workplace Bullying Institute is likely due to a scarce supply of jobs and promotions in a tough economy, which can often lead to senior executives condoning “hard” management styles. Whitten offers the following advice:

For the employee – Chronicle your instances of abuse early on with HR and your physician and/or counsellor.

For the employer – Workplace bullies will often target highly skilled employees whom they see as a threat. This holds the potential to lower productivity, decrease morale, and increase absenteeism and disability claims.

Work towards creating a positive work environment in which individuals feel comfortable coming forward with concerns. Rather than assume an employee is being “overly-sensitive”, investigate all concerns and make an effort to help the concerned party feel that they are returning to a safe environment.

For more tips on how to manage bullying in the workplace, you can read the full article *here*

Individuals Win the Right to Sue for Invasion of Privacy

Whitten and Lublin — Fri, 03 Feb 2012 14:01:07 +0000

The Ontario Court of Appeal ruled last week to permit the tort of breach of privacy in civil action lawsuits, signalling a significant change in privacy law that some might say was long overdue.

A short summary of the case Jones v. Tsige:

Sandra Jones worked for the Bank of Montreal, unknowingly alongside Winnie Tsige, the common law partner of her ex-husband. It was discovered that over the course of 4 years, Tsige had accessed Jones` financial information at least 174 times. After suspicions were raised by Jones, Tsige admitted to the wrongdoing and was disciplined with the denial of her bonus and a one week suspension without pay. Not satisfied that this was a sufficient resolution, Jones successfully challenged a limitation in civil court on the right of an individual to directly sue another for invasion of privacy. Referencing Professor William L. Prosser’s text “Privacy”, the judge appropriately named the new tort “Intrusion upon Seclusion”.

Who can be guilty of intrusion upon seclusion?

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

An important caveat to the scope provided was that cases need only be considered if the action(s) are both deliberate and significant. How effective these guidelines will be at deterring frivolous claims waits to be seen.

What does this mean for employers and employees?

It is important to consider both the cause of your privacy concern as well as your desired remedy. A good starting point is discussing the matter with your manager. If you are dissatisfied with the process that was followed, it may make more sense to pursue a complaint through the Personal Information Protection and Electronic Documents Act. (PIPEDA) This should give companies greater incentive to ensure that their policies and procedures on privacy are exceptional, as it will be easier to perform damage control sooner rather than later.

With individuals on the hook for up to $20,000, it certainly doesn’t hurt for employers to mitigate potential liabilities and for snooping employees to temper their impulses.

Online Legal Services Are Growing, for Better or Worse

Whitten and Lublin — Wed, 11 Jan 2012 06:47:08 +0000

A dramatic shift is taking place in the technological world that has altered the environment in which lawyers operate. Much like the dinosaurs, some people speculate that certain law firms may face extinction.

What is this dramatic shift? The online provision of legal documents and services. Several companies now offer downloadable templates and tutorials for clients who want to pay less and do more. The Lawyers Weekly wrote a great article outlining a brief history and some of the key sceptics and defenders of this new era.

Defending the do-it-yourself approach, Jordan Furlong of Lawyers Weekly says “this is a growth industry for the future of the legal marketplace.” – The main demographic to benefit being small businesses and individuals who believe they can’t afford high-priced lawyers. Warren Smith of The Counsel Network calls this “the Wal-Mart of legal services,” and urges firms to incorporate this approach into their practice or seek strategic alliances.

Not everyone believes this service is all it’s cracked up to be. Daniel Lublin, Partner of Whitten and Lublin says it’s “a scam”. As the old adage goes, you get what you pay for. Cheap legal services can create the illusion of assurance, when in fact, people may be unknowingly missing key parts of the puzzle that could end up costing them dearly.

Since it is still virtually fresh on the market, popularity in online legal services will likely grow, but whether it sticks around will be determined by the reputation it garners. Competition will increase, and so too will the spectrum of quality in services. When it comes to anything beyond routine and simple procedures, it’s unlikely, and even dangerous to consider removing legal consultation from the equation.