The Last Straw Doctrine

Toronto Labour Lawyer Brian Bell: A recent decision out of the UK says that employers now have a level playing field with employees when it comes to "the last straw."

The High Court has approved an employer’s reliance on the “last straw” doctrine to justify the summary dismissal of an employee. After a heavy drinking session, the employee overslept and missed an important meeting. He was dismissed for gross misconduct and the employer successfully defended his claim for wrongful dismissal. It has been established for a while that an employee can rely on a series of acts by the employer which cumulatively amount to a sufficiently serious breach to entitle him or her to resign because the employer has repudiated the contract of employment (the “last straw” doctrine). The Court accepted that an employer could also rely on the last straw doctrine to justify dismissal of an employee without notice. The employee had shown by his behaviour that he no longer intended to be bound by his contract of employment.

There has been some of this in Canada, but the question has always been how far back is “cumulative," and what constitutes bad behaviour? For example, does an absenteeism issue in general form part of a performance disciplinary process? The "in general" concept matters, because a lot of union environments will suggest that discipline and termination for cause must be of the same issue to be "cumulative."

I know of a firefighter who was finally terminated for absenteeism, and it was upheld for absenteeism for sickness, but it took about twelve years to get the arbitration system to support the decision to terminate for cause.

Know What Your Compensation Should Be Before Termination Happens

Toronto Labour Lawyer Brian Bell: I get calls from all sorts of individuals in different levels of jobs who have been let go. The most common statement I hear is that the termination was “not fair." They didn't see it coming, and what they received in compensation didn't meet with their expectations. From the most junior executive on up to a member of the board, if someone is terminated, a phone call to a lawyer usually has to do with this concept of fairness.

In July 2013, Alarm Force Chief Executive Joel Matlin was ousted from the company he founded in 1988. You may remember he personally did many of the radio commercials for the company.

Mr. Matlin has since commenced an action claiming the termination was against the specific terms of his contract. The total amount of the claim is approximately $11.3 million.

The reason I bring up this specific matter is to show that no individual is guaranteed any level of security in the workplace. Everyone - even the President and CEO - reports to someone. In any given instance, at any given time, we can find ourselves out of work. The issue then becomes whether we have been treated fairly by our former employer. In Mr. Matlin’s case, he feels he was not and is filing a claim. Whether Mr. Matlin is deemed correct will eventually be determined by the Courts, unless settlement is reached.

For the rest of us, we need to know to what we are entitled, but we should know this well before something drastic happens. We need to know our entitlements not at the end of the employment relationship when we are being escorted from the workplace, but before we start our first day of employment.

While no one can guarantee anything, having all of the parameters outlined will lower the risk of having to proceed with a specific claim.

Brian Bell is a Labour and Employment Lawyer with Pace Law Firm in Toronto.

Should I Join A Union? Maybe. But Do Your Homework

Toronto Labour Lawyer Brian Bell: In these tough economic times, some non-union employees who have lost their jobs may have stated, “I should have had a union,” or words to that effect.

While employers today may be taking every opportunity to gain concessions from unionized employees - which in some cases leads to closings - some employees might determine that their best response is to sign up with respective locals.

Firstly, let me say that choosing to belong to a union is the employees' choice. But whatever your decision, be informed before you make that choice. There are positives and negatives to the union route, and you should educate yourself about them.

Recently, I received a call from a man I'll call Rick. Several months prior to the call, Rick had signed the appropriate documentation to become a union member. He said a union representative had laid out all of the benefits of joining the union. It sounded good to Rick, and he signed on.

Unfortunately, after Rick had signed the document, the promises failed to materialize. Rick now wanted to “de-certify” from the union. He was somewhat surprised when he found out that the de-certification process was not so easy. In fact, for a case like Rick's, quashing his certification at that time was not even possible.

For all those in the workplace, know what you are getting into. Be informed. By doing so, you can make reasonable decisions that best suit your needs.

Brian Bell is a Labour and Employment Lawyer with Pace Law Firm in Toronto.

Remote Workers – Accountability

Toronto Labour Lawyer Brian Bell: There are many situations in the workplace where remote workers are cost effective and efficient. Mobile technologies and wireless communications, along with online work applications, make it easy for corporations to support this type of work arrangement.

Working from a remote location allows flexibility to be a great factor, which has pros and cons for both the employer and employee.

For the employee, working remotely can help with such things as travel costs and child care considerations. For the employer, remote work can be a positive recruitment and retention tool. Still, it is worth remembering, that employers should keep an eye on what remote workers are up to. In this case from the US, an employee was caught outsourcing various jobs to China:

While Bob physically reported to the company that hired Verizon to investigate him, he also padded his income as a contract worker for other local firms, for which he also relied on his Chinese outsourcing arrangement.

Setting rules and goals can help keep off-site employees accountable for their work. These provide the criteria for what is expected from the remote worker, and how they will be evaluated. Ongoing communication will allow for clarity on tasks, and keep remote employees in the loop. They will feel informed and still part of ongoing daily activities, thus keeping productivity at a high level.

Attendance of office events in person, especially to celebrate successful team projects, can also help off-site employees stay connected and not feel overlooked.

However you choose to stay in touch with employees, remember that constant feedback allows for a strongly connected workplace, and decreases the chances of miscommunication and trouble down the road.

Brian Bell is a Labour and Employment Lawyer with Pace Law Firm in Toronto.

What Does Workplace Accommodation Mean?

Toronto Employment Lawyer Brian Bell - There are many situations in the workplace where “accommodation” is required.  We are probably most familiar with situations that involve an injured or sick worker, who requires accommodation when easing back into the workplace. According to the rules in Canada, failure to accommodate such a worker would violate that individual’s human rights.

So how far does an employer have to go to show that they accommodated an individual, and what form does this accommodation need to take?


On January 31, 2013, the Federal Court of Canada upheld a finding of the Canadian Human Rights Tribunal.  In this case, the court found that the Canada Border Services Agency (CBSA) discriminated against a female employee on the basis of family status. The CBSA had not accommodated her child care needs.

The issue is that the employer must accommodate until they reach the point of “undue hardship." That can mean different things to different employers.

The employer’s position had been that while they were prepared to accommodate the employee’s needs, they did not feel the employee’s child’s needs were their responsibility.

The request for accommodation centered on this full-time employee being allowed to work fixed daytime shifts.  The practice of the employer for handling such requests was to re-classify the employee as part-time, and cap the total number of hours the employee would work.  The Court determined the employer failed to accommodate and awarded accordingly.

The issue is that the employer must accommodate until they reach the point of “undue hardship." That can mean different things to different employers.  In the case here, it was a large company, so this accommodation would be of minimal impact.  In a smaller company of, around 5 employees who all had the same request, the result would certainly be catastrophic to the business.

Essentially, this latest decision shows that employers must be open minded, creative and compassionate in dealing with family issues and responsibilities. It is quite possible that this decision on child care may be extended to aging parental responsibilities.

Time will tell. For now, employers should be on the look out for any situations where they might be in breach of a duty to accommodate, and seek guidance accordingly.

What Does Mitigating Losses Mean?

Toronto Employment Lawyer Brian Bell: Those who have been terminated from their position on a With or Without Cause basis might be familiar with the term “Mitigate One’s Damages." It's worth going over the rules of mitigation again here.

Mitigation refers to making one’s situation less severe after a breach of contract. For instance, if a building's tenant skips out on their rent, the landlord can't leave the unit vacant for years and go after the tenant for all of that lost rent. The landlord must try to rent the unit to someone else.

An example in the employment realm is a fired employee who mitigates their damages from a Wrongful Termination by finding a new job. A fired employee cannot simply put their feet up and then go after their boss for the wages they're losing. Instead, they have to make a reasonable effort to look for work. By finding a new job, the terminated employee mitigates their losses, and also reduces any damages to which they would be eligible from their former employer.

There are several principles in mitigating one’s damages:

1. The first and most important principle is that the Plaintiff (employee) must take all reasonable steps to mitigate the loss.

2. The second principle states that the Plaintiff is able to recover for the loss incurred when reasonable steps were taken to avoid the loss.  In other words, if you tried to mitigate your losses through reasonable efforts to find a job, but were unsuccessful, you will not be penalized.

3. The last principle is when the Plaintiff has taken steps to mitigate the loss, and these steps are successful, that the Defendant (employer) is entitled to benefits accruing from the Plaintiff and is therefore only liable for the reduced amount of the loss.

Essentially, the employee is required to mitigate their losses, and make all reasonable efforts to do so. The former employee cannot claim both a payout and find a new job, and thereby be better off than they would have been if they continued to be employed by their former employer.

Note that it remains the Plaintiff’s responsibility to show that they have mitigated their damages by keeping records of their efforts to do so.

Lockout vs. Strike

Toronto Employment Lawyer Brian Bell: We're well into the second month of the NHL lockout, and everyone around the water cooler has an opinion about it. Still, you may be wondering what exactly a lockout is, and how it differs from a strike.

According to the legal interpretation, a lockout is generally defined as an employer’s withholding of work and closing of a business because of a labour dispute. The term is very literal: you're locked out.

A strike is the opposite. When an employer and and a union reach a deadlock, a strike sometimes occurs, whereby the union members withhold their skills and abilities and do not work until some agreement is reached.

A lockout is the option the employer has in dealing with the employee representatives with the intent to put pressure on the employees’ union: if the union members are locked out and can't work, then they aren't being paid, either.

If you consider yourself to be a sports fan, especially a hockey fan, you're probably getting sick of the term "lockout."

If you consider yourself to be a sports fan, especially a hockey fan, you're probably getting sick of the term "lockout." The term has been used in the NFL and the NBA over the last year or so, as well, as these two leagues recently went through their Collective Agreement negotiations process. For the NHL, though, this is their second lockout in the past 7 years.

The use of either a lockout or a strike is intended to force the other party to reach an agreement/renewal of the Collective Agreement. Whatever the case, whether employees choose to strike or the employers choose a lockout, there is a work stoppage.

The ultimate cost of such an action remains to be seen when the product or service is offered once again.  Will the consumer return?  I guess we will have to wait to see if consumers of professional hockey will return, or if they've had enough and will take their entertainment dollar elsewhere.