Here are the five most frequent files appearing on my desk and in court dockets:
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Workplace harassment: Employees who view themselves as harassed occupy a good chunk of my legal practice and, following Canada’s first million dollar workplace harassment award, I expect even more of these claims to walk through my office door. But, despite the best efforts of creative employee-side lawyers, most harassment claims are not credible as employees’ perceptions of their treatment are not dispositive of the issue. The test is whether the employee can demonstrate continued employment was objectively intolerable, which must be obvious in the eyes of the trial judge, not just those of the litigants. Despite the prevalence of harassment claims, most will fail at trial, or before.
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Unjust performance appraisals: Employees often declare a critical review is either a form of harassment or management’s concoction to force their resignation. For an unwarranted review to amount to a wrongful dismissal, an employer must have acted in bad faith and prevented the employee’s improvement. Anticipating the havoc that could be unleashed by the possibility that a critical evaluation could invite an employee to resign and then sue, in a recent Ontario case, Justice Randall Echlin noted negative reviews, per se, do not lead to dismissal. He noted employers must be able to discuss work performance in an open fashion “so long as the discussion is proffered in good faith”. Therefore, for a court to tolerate an employee’s lawsuit on these grounds, it must agree that a reasonable person would not be able to continue her job based on a critical evaluation or a series of critical evaluations.
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Calculating severance pay: Courts do not follow any defined rules in calculating how much severance to pay to an employee. Neither does your ex-employer. Rather, a judge’s task is to consider the circumstances that either hinder or help a dismissed employee to find a new job. Four factors prevail: tenure, age, re-employability and type of job.
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Employment Contracts: These represent employment law’s most ambivalent feature. Anything can be written into an employment contract, but not all written promises can be enforced. In a recent column, I noted my familiarity with at least five arguments to render a contract unenforceable. In order of the relative strength of the arguments, employees, or their lawyers, who seek to overturn a signed agreement should argue: the contract provides for less than the minimum employment standards; after the contract was signed, the employer unilaterally imposed new terms; the contract, or at least the impugned portion, is vague; the contract was signed under duress or the employee was denied the time or opportunity to have the contract reviewed; and contracts signed years ago may no longer apply where it is clear those terms were never intended for present circumstances.
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Off Duty Behaviour: Employees who believe their conduct away from the office is immune from discipline are mistaken. Employers have the technological means — and occasionally the inclination — to monitor behaviour away from the job.
Daniel A. Lublin is a Toronto employment lawyer. He can be reached at dan@toronto-employmentlawyer.com or you can visit him on the web at www.toronto-employmentlawyer.com.
