Author: Daniel A. Lublin
Workplace laws sometimes lean on the workers
Criticism may not be agreeable, but it is necessary — Winston Churchill.
This is as true in law as it is in life. Here is a sampling of some of the questions I received this week and the cautionary advice I provided to those employees.
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. This is not always so. 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 from the possibility that a critical evaluation could invite an employee to resign and then sue, in a recent Ontario case, the judge noted that negative reviews, per se, do not lead to dismissal. 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 or series of critical evaluations.
Harassment: Most employees I consult with view themselves as harassed. But unlike a change in compensation or a clear demotion, harassment is a subjective concept, meaning that to make out a successful claim, it may depend more on the judge you happen to draw than the facts of your case. For harassment to amount to a meritorious claim, the employee must show that he or she was treated with incivility, unfairness or disrespect or that management’s conduct was designed to cause the employee to leave. Not any form of perceived mistreatment will suffice: the conduct complained of must be such that no reasonable employee would be expected to persevere.
Calculating Severance Pay: There is no rule of thumb. 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. Ask yourself how long it would reasonable take to find a comparable job and this is how much severance you should get.
Employment Contracts: Today, most of the workforce has a written employment contract. The result is that employees unknowingly agree to be eliminated with minimum severance, demoted, banished to far away jurisdictions, see their salary slashed, prevented from competition following their departure, and have promises broken at their employer’s pleasure — all with legal impunity. Have a contract reviewed by legal counsel before signing off.
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.