New Year’s Resolutions – Don’t leave agreements to handshakes or memory

Date: 2008
Author: Daniel A. Lublin
Publication: Metro
Here is a sampling of some of the most frequently asked questions I received in 2007 – and the advice I provide for employees in 2008:
Disputes: Most workplace disputes ultimately result in conflicting recollections of the facts and context, especially when later relied on as a basis for legal action.  As courts generally treat with greater credibility the evidence of an individual who takes steps to document and preserve his or her version of incidents, employees must, therefore, take notes of important conversations and events – at the time when they occur.  Similarly, employees must immediately respond, in writing, to negative or disputed performance appraisals or risk losing the ability to later challenge their propriety.
Oral Agreements: An employment agreement exists whether or not it is in writing.  Agreements can be based on the promises that have been made, the conduct of the parties, terms implied by the courts, the practices in the workplace and any documents or policies that have been properly distributed.  But promises or understanding not made in writing are easily denied or construed in a manner that does not reflect the initial bargain.  To avoid this problem, any oral agreement should be reduced to writing; not left to a handshake or memory.
Workplace Investigations: An investigation can be a double-edged sword. To rely upon misconduct as cause for dismissal, Canadian courts require employers to conduct a flawless investigation before condemning an employee. But employees don’t get to abuse due process; they are legally required to respond truthfully to questions asked in an investigation.  Not only does a refusal to answer questions raise an inference that the alleged misconduct actually occurred, but an employer may uncover other skeletons in that employee’s closet, justifying discipline, that it hadn’t even been seeking.  Employees, therefore, ought to retain counsel to protect their position when serious allegations are raised.
Resignations:  Employees proclaiming the words “I quit” may not have actually resigned.  Courts recognize a number of exceptions to ensure that a true resignation is a voluntary action: Employees quitting with good reason, such as intolerable working conditions, may be deemed to have been fired instead.  Employees are also free to withdraw a resignation and return to work, before the employer accepted it, or acted upon it.  Finally, if the resignation was provided in the heat of an argument, without deliberation, it should not be relied upon by the employer.  The employee should receive the benefit of time to confirm her intentions in writing.
Overtime: Despite the recent high-profile class-action lawsuits against the CIBC and Scotiabank, claiming overtime pay for all employees who have worked more than eight hours in a day, busy employees “forced” to work through lunch, for example, should not suddenly begin to line up outside my office door.  Employees are governed by differing employment standards legislation across Canada creating various exceptions and thresholds for overtime pay.  Assuming an employee is entitled to overtime, he or she should maintain some form of evidence showing the amount of overtime that was actually worked.  Finally, as provincial dispute resolution mechanisms provide cost effective alternatives to bringing a court action, counsel should doubtless be sought in advance.