Workplace harassment is a common employment law case

Here are five most frequent files appearing on my desk and in court dockets

1. Workplace Harassment
Following Canada’s first million dollar workplace harassment award, I can expect to see more of these claims walk through my door. That being said, most harassment claims are not credible as employees’ perceptions of their treatment are not dispositive of  the issue. The test is whether an employee can demonstrate continued employment was objectively intolerable, which must be in the eyes of the trial judge, not just those of the litigants.

2. 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.

Justice Randall Echlin, in his decision for Ata-Ayi v. Pepsi Bottling Group, noted negative reviews, per se, do not lead to dismissal. He wrote;

It is essential to any healthy and constructive employment relationship that the employer be able to discuss in an open and candid fashion with its employees, so long as such discussion is proffered in good faith.  Sugar coating or minimizing legitimate concerns inhibits performance improvement and is work performance  not conducive to a healthy and vital working relationship.

3. Calculating severance pay
Courts do not follow any defined rules in calculating how much severance to pay an employee and neither does an ex-employer. At trial, a judge’s task is to consider the circumstances however, four factors do prevail: tenure, age, re-employability, and type of job.

4. Employment contracts
Anything can be written into an employment contract, but not all promises can be enforced. In breaking a contract, most argue the contract provides less than the minimal employment standards, is vague, or the employee was denied the time or opportunity to have the contract reviewed, among other criteria. I elaborated on this premise in my recent column Employment Contracts Can Be Broken.

5. Off duty behavior
Employees who believe their conduct away from the office is immune from discipline are mistaken. Thanks to social networking websites such as Facebook, employers have the technological means- and occasionally the inclination- to monitor behavior away from the job.

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Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at [email protected]