Date: 2007
Author: Daniel A. Lublin
Publication: Metro

Laws of employment also lean on the workers

Criticism may not be agreeable, but it is necessary.  — Winston Churchill
Here are the five most frequent files appearing on my desk – and in court dockets:
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 that 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 ultimately fail at trial, or before.
Unjust performance appraisals: Employees often declare that a critical or negative 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 that negative reviews, per se, do not lead to dismissal.  He noted that employers must be able to discuss work performance in an open and candid 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 upon a single critical evaluation or a series of critical evaluations.
Calculating Severance Pay: Seldom is severance pay based on arithmetic. Courts do not follow any defined rules in calculating how much severance to pay to a particular employee. Neither does your ex-employer.  Rather, a judge’s task is to consider all of the circumstances that either hinder or help a dismissed employee to find a new job.  Four factors consistently prevail: tenure, age, re-employability and the type of job being performed.
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 separate 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 or ambiguous;
• the contract was signed under duress or the employee was denied the time or opportunity to have the contract reviewed; and
• not least, contracts signed many years ago may no longer apply where it is clear that those terms were never intended to cover the present circumstances.

Off Duty Behaviour: 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.