Toronto Employment and Labor, Wrongful Dismissal Lawyers

Whitten & Lublin

141 Adelaide Street West
Suite 420
Toronto, Ontario M5H 3L5
Canada

(416) 640-2667

(416) 644-5198

www.toronto-employmentlawyer.com

Contact Mr. Daniel A. Lublin

Law Firm Overview

Whitten & Lublin, LLP is a boutique employment law firm located in Toronto, Canada. Our lawyers provide expert legal counsel to both employers and employees on all aspects of employment law in the non-unionized environment.

As trusted legal advisors to both corporate and individual clients, we focus on delivering strategic resolutions to workplace issues, as well as, representation of our clients’ interests before the courts.

It is our depth of experience on both sides of the table that enables the firm’s lawyers to deliver exceptional results and proactive solutions. We assist employers in strategically responding to the wide range of human resources and regulatory issues that arise in the day to day management of their businesses in order to reduce workplace conflict and employer liability.

We also regularly act on behalf of individual employees at all levels, providing timely, strategic advice and advocacy for workplace disputes.

Whitten & Lublin is guided by the philosophy that effective representation involves communication, team work and strategic thinking. Results matter and we work closely and collaboratively with our clients to achieve them.

Practice Areas

Additional Practice Areas: Wrongful Dismissals; Termination of Employment; Constructive Dismissal; Reasonable Notice Periods; Workplace Harassment and Bullying; Just Cause for Dismissal; Bad Faith Discharge; Severance Package Reviews; Settlements; Employment Contracts; Independent Contractor vs. Employee / Employment Insurance Appeals and Canada Pension Appeals; Non Solicit and Non Compete Clauses; Restraint of Trade Agreements; Unfair Labour Practice Complaints.

Practice Areas Description

Our firm is dedicated to providing timely and effective employment law representation to both employees and employers in:

- Wrongful Dismissals

Non-union employees in Canada do not have an entitlement to continued employment. That is, an employer is permitted by law to terminate an employee, as long as an advanced warning or payment, known as reasonable notice or severance is provided. What is most often disputed is the amount of notice or pay that an employee is entitled to. This dispute is the basis of many wrongful dismissal claims. In essence, the employee will claim that the employer has not offered to pay a satisfactory amount of severance following his or her termination.

- Constructive Dismissal

Constructive dismissal is the term used when an employer imposes a fundamental change to an employee’s job. This change must be considered a substantial departure from the employee’s previous job, such as a change affecting the employee’s responsibilities, status, geographical location, or compensation. (See, for example, the Supreme Court’s decision in Farber v. Royal Trust Co.). Intolerable working conditions stemming from harassment, sexual harassment, discrimination or bullying may also be considered a constructive dismissal, since it is a term of the employment contract that employees be treated with decency, civility and dignity.

- Reasonable Notice Periods and Severance Packages

The employer’s obligation to provide reasonable notice of an employee’s dismissal began with the concept of “working notice”, where the employee would be required to continue to work for the employer from the time he or she is notified of the dismissal until the effective date of the termination, at some later point in time. Although working notice still occurs in some instances today, it is far less common than the concept of “pay in place of notice”. In this case, the employee is asked to leave the workplace at the time he or she is notified of the termination and the employer will provide salary continuance or a lump sum payment instead of having the employee continue to come to work.

- Mitigation

Mitigation is a basic principle of contract law that figures prominently into many employment law cases. Under this doctrine, a dismissed employee has to take all reasonable steps to minimize any losses they have suffered. Generally, this means that an employee who has been dismissed must look for another position instead of simply sitting back and allowing their losses to accumulate. Mitigation usually impacts employment law cases in one of two ways: If the employee finds new employment during the notice period, any money earned from the new job will be deducted from the total amount of damages owed by the former employer. Usually, we refer to this scenario by stating that the employee has mitigated his or her losses.

- Just Cause for Dismissal

When an employee’s actions or cumulative behavior becomes intolerable, an employer has the right to dismiss the employee, without notice or pay, as the employer is said to have cause for dismissal. As cause for dismissal is viewed as the capital punishment of employment law, only the most serious forms of misconduct will meet the test. As well, employers have an obligation to consider an employee’s entire employment history and any mitigating factors in assessing whether cause for dismissal is a proportional response to misconduct. The seminal Canadian definition of cause for dismissal comes from an Ontario Court of Appeal decision in the case of Port Arthur Shipbuilding Co. v. Arthurs. In this case the court stated: If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties, or prejudicial to the employers business, or if he has been guilty of willful disobedience to the employers orders in a matter of substance, the law recognizes the employers right summarily to dismiss the delinquent employee.

- Employment Contracts

A fixed-term contract states a specific date when the employee’s employment will automatically come to an end. This form of contract is usually provided to employees who are hired to perform a specific task for a set period of time. Therefore, when this term expires, without renewal, the employment relationship ends and the principle of reasonable notice does not apply. However, most employment contracts are for an indefinite term, which will continue until the contract is terminated by either the employer or the employee. Employers and employees can agree to almost anything in an employment contract. Frequently, there are agreements about the amount of severance or reasonable notice that must be provided in the event of dismissal. In other words, the parties agree to displace the employee’s entitlement to reasonable notice by specifying some other amount directly in the employment contract. These agreements are referred to as “termination provisions.”

It is common for new employees to be asked to work for a probationary period, usually lasting three to six months, where their skills are tested before being given permanent employment. A probationary period must be expressly agreed upon by both parties, and cannot be implied. As well, because probationary periods reduce an employee’s common law rights, they must be properly drafted in order to be enforceable or to limit an employee’s right to reasonable notice in the event of dismissal.

- Resignation

Many times, there is a dispute about whether or not an employee has resigned, as employees who resign are not entitled to severance. Court decisions have stated that a true resignation must be clear and unequivocal. One way to consider the test is to ask whether, considering all of the surrounding circumstances, the employee either indicated an intention to leave and not return or, by his or her actions, this intention was clear. There are other circumstances where a resignation that was given may not actually be valid. Employees who resign in the ‘heat of the moment’ or during an argument, on impulse, or where the resignation was given in response to an ultimatum may not have legally resigned.

- Human Rights and Discrimination

Provincial human rights statutes generally state that every person has a right to equal treatment with respect to employment without discrimination based on race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offenses, marital status, family status, sexual orientation or handicap. The Ontario Human Rights Code is the legislation that protects employees against discrimination in the workplace in Ontario. Similarly, the Canadian Human Rights Act prohibits discrimination at federally regulated businesses such as banks, airlines and telecommunication companies. Workplace human rights violations usually involve issues of hiring, firing, drug testing, promotional decisions, harassment, sexual harassment, accommodation of disabilities or illnesses, religious accommodation and discriminatory practices.

- Sexual Harassment

Sexual harassment encompasses a wide range of unwelcome conduct of a sexual or gender-related nature including, but not limited to, verbal comments, unreasonable solicitations, gestures or physical conduct. Employees who are subject to sexual harassment have a variety of options available to them, including a human rights claim a lawsuit or other statutory complaint.

- Statutory Complaints

The Ontario Human Rights Code (the “Code”) and the Canadian Human Rights Act protect employees against discrimination in the workplace. Employees who have been subject to discrimination or harassment based on personal characteristics such as, race, age, illness and disability, place of origin and religious beliefs, among other grounds, have the ability to make a statutory complaint against their employer and other individuals who may have been involved. Unionized employees are represented by a trade union and are generally unable to sue their employers in court. Instead, unionized employees must follow the guidelines set out in the collective agreement, which is a written agreement addressing the employment relationship between the employer, union, and employees. Where a unionized employee alleges that he or she has been treated by their union in an arbitrary, discriminatory or bad faith matter, a complaint may be filed with the Ontario Labour Relations Board.

- Non-Competition Agreements

A non-compete agreement is a form of a restrictive covenant, which is a clause in an employment contract setting out the rights and obligations of an employee post departure. Commonly, non-compete agreements attempt to prohibit an employee from competing with an employer following his or her departure, however it was caused. Non-compete agreements are viewed as restraints of trade. In other words, they are generally quite punitive, limiting an employee’s ability to earn a living following dismissal, for example. For this reason, they need to be carefully drafted to be enforceable.

- Non-Solicitation Agreements

Similar to a non-compete, a non-solicitation agreement is a form of a restrictive covenant, which is a clause in an employment contract setting out the rights and obligations of an employee post departure. Commonly, non-solicit agreements attempt to prohibit a departing employee from actively soliciting the clients of their former employer. Also, similar to non-compete agreements, non-solicit agreements are viewed as restraints of trade. For this reason, they need to be carefully drafted to be enforceable, although they have a greater likelihood of being upheld than non-compete agreements.

- Damages for Bad Faith, Mental Distress and Personal Injury

* Aggravated Damages

The courts will allow compensation to employees suffering additional injuries to dignity or pride arising from the manner of termination, which are also known as aggravated damages. Such injuries include loss of reputation, insult, annoyance, aggravation, nervous shock, inconvenience, or other emotional or sentimental suffering. There are strict requirements for employees to qualify for aggravated damages. First, employees must prove that the harm they suffered from the wrongful dismissal was reasonably anticipated by the employer. Second, an employer’s conduct must also constitute a separate cause of action, otherwise known as an independent actionable wrong. In this way, the employer must not only have dismissed an employee, but it must have also committed some other offence that the court considers worthy of compensation.

* Intentional Infliction of Mental Suffering

When an employer deliberately and intentionally harms an employee, it may amount to the intentional infliction of mental suffering. To be successful, the employee must prove that the employer intended to produce harm, that the conduct was outrageous, and also that a visible and provable injury has been suffered.

* Punitive Damages

Unlike aggravated damages, which serve a compensatory function, punitive damages are meant to punish the wrongdoer and serve as a disincentive for others not to act in such a manner. Punitive damages may be awarded where an employer’s misconduct is objectively blameworthy, or considered so malicious that it is deserving of punishment for offending the court’s sense of decency.

* Damages for Injury to Reputation

While generally quite rare, in a few Canadian employment law cases, courts have awarded an employee damages for injury to his or reputation. As well, courts have awarded damages for defamation for libel and slander in wrongful dismissal cases.

* Negligent Misrepresentation

Employers may embellish or even misrepresent the job description during the hiring process in an attempt to make the job look more attractive to prospective employees. In doing so, employers risk legal consequences if the employee relies on the representation, accepts the position, and then finds out that the job does not match its rosy description. In these circumstances, employers may be liable for the tort of negligent misrepresentation, which is a statement made carelessly or unreasonably that is relied upon by an employee who then suffers damages.

- Personal Harassment or Bullying

Intolerable working conditions stemming from harassment, or bullying may also be considered a constructive dismissal, since it is a term of the employment contract that employees be treated with decency, civility and dignity. Many times, harassment or bullying will not be objectively clear to an employer, or it may be carried out by individuals who are neither supervisory nor managerial. In all of these cases, it is important that you meet with an employment lawyer who can counsel you through your options and what steps you may wish to take to protect your legal rights.

- Employment Insurance Benefits

Eligibility for employment insurance has three rules: (1) you must go without work or pay for at least seven consecutive days; (2) you must have worked enough hours during the qualifying period; and (3) you must suffer an interruption of earnings through no fault of your own. In many situations, employees who have been constructively dismissed or wrongfully dismissed have difficulty obtaining employment insurance benefits, given their former employer’s characterization of their departure. In these situations, your application for benefits is critical, as a government officer will assess how you have described the reasons for your departure, in determining whether to grant you benefits.

- Workplace Investigations

Workplace issues such as sexual harassment, personal harassment, bullying, discrimination, policy breaches and other forms of misconduct, such as allegations of theft or fraud may lead to a workplace investigation, in which discipline or dismissal may ultimately be administered. If you are the subject of a workplace investigation, it is critical that you consult with an employment lawyer who can guide you through the investigation, participate or assist you in formulating answers to difficult questions in order to protect your legal position.

- Workers' Compensation Claims

If you have been injured at work, or developed a medical condition from work, there are basic steps that you must take in order to preserve your claim for workplace safety benefits. Employees must report the injury as a Workplace Safety and Insurance Board injury, seek witnesses, complete WSIB forms, maintain relevant medical information, and cooperate with your employer and the WSIB.

- Privacy Issues

The Canadian workplace presents many potential privacy legal issues. Meeting with an employment lawyer can assist both employers and employees in understanding the privacy rights in the workplace, the public and private sector legislation governing privacy, the right to collect and use personal information, what types of information an employer can legally gather and disclose, as well as, penalties for violating Canadian privacy laws.

- Unionized Employees & Duty of Fair Representation Complaints

Unionized employees are represented by a trade union and are generally unable to sue their employers in court. Instead, unionized employees must follow the guidelines set out in the collective agreement, which is a written agreement addressing the employment relationship between the employer, union, and employees. According to the Ontario Labour Relations Act, unions have a legal duty to fairly represent their employees. Unions must ensure that the interests of all employees are served in a manner that is not arbitrary, discriminatory or in bad faith. If the union has failed to properly investigate, process, or arbitrate a grievance, an employee may file a duty of fair representation complaint with the Labour Relations Board, where a Board Tribunal has the authority to order a number of remedies.

- Conspiracy Claims in Employment Law

The legal claim of conspiracy in employment law is available where an employer intends to cause harm to an employee or ought to have known its conduct would lead to harm and, as a result, the employee actually suffers some form of injury, such as mental distress. The claim of conspiracy is generally restricted to conduct where there is a real or constructive intent to injure the plaintiff.

- Class Action / Mass Terminations

Many employers engage in various tactics to reduce their workforce such as large scale restructuring, mass layoffs, group terminations or "voluntary" pay cuts. In many cases, these changes create situations that affect numerous employees in the same manner - giving rise to a potential class action employment law claim. We provide representation in group employment law claims or mass wrongful dismissal actions.