Recapping 2009’s developments
Author: Daniel A. Lublin
Employee’s privacy rights often will prevail.
As we look back on a busy year, we all received some good advice, but often never got around to following it. Since the holidays are a time to reflect, I’m giving you a second chance. Here is some advice for employees in 2010:
Oral Agreements: Promises or understandings not made in writing are too easily denied or construed in a manner that does not reflect the initial bargain. If you want to rely on a promise you get from your employer, get it in writing, don’t leave it to a handshake or memory.
Workplace Investigations: In at least two cases I’ve written about this year, the employee lost his case, not because of his misconduct, but because he lied about it during the ensuring investigation. Often, the initial allegations would not have led to dismissal but dishonesty during an investigation does.
Resignations: Courts continue to find that uttering the words “I quit” does not necessarily make it so. Unless you clearly wish to leave your job, you can challenge an assertion that you have resigned, if that was not your true intention.
Overtime: In 2009 we may have finally seen the end of overtime class action lawsuits, when an Ontario court refused to certify a group of CIBC employees. Employees can still claim overtime pay. However, in light of this ruling, you should consider doing so individually instead of as a group.
Credibility: Most workplace disputes arise because of a disagreement about what did or did not actually occur. Courts continue to support the claims of employees who took notes immediately following important conversations or events.
Privacy Rights: In a few recent cases, employees’ privacy rights collided with an employers’ right to monitor its workplace. While employers do retain the right to monitor their employees, it must only be done where there are reasonable grounds to believe surveillance is necessary. In one case, the employee was wrongfully dismissed when her employer installed a secret camera in her office.
Severance: is not based on a rule of thumb. Courts do not assess severance based on a formula, such as one month per year of service. It is based on factors such as age, tenure, your position and your relative re-employability.
No free consultations. In law, as in life, you get what you pay for. If you want sound legal advice, don’t be lured into promises of free consultations.