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.

Lying About Office Romance Leads to Termination

Brian Bell

Toronto Employment Lawyer Brian Bell: Since we probably spend at least half of our time with our office colleagues, it shouldn't come as a shock when we hear of an office romance. Just a word of warning to the romantics: be careful. Depending on the circumstances, an office romance can cost you your job.

This example involving a manager named Bryan Reichard, and his subordinate Ms. Thompson, is worth a look.

The company was Kuntz Electroplating Inc., and they were astute enough to recognize that office romances happen.  In an attempt to manage such situations, they developed a non-fraternization policy for staff to follow.

While the company did not forbid office romances outright, they did require an employee to advise upper management if they entered into a romance with another worker. The company wished to be made aware of such relationships for operational and Human Rights reasons, such as possible sexual harassment claims, or accusations of favouritism.

In the Reichard case, the company confronted him with the rumour that he was involved in a romantic relationship with a subordinate. Reichard denied the claim, and continued to deny it on several other occasions. He was married, which likely had something to do with his denials. When he was confronted a final time by his superiors, he finally came clean and said that yes, he was involved with a co-worker. When management suspended him and told him not to come back to the office until further notice, he returned to the office twice, in direct violation of their orders.

The employer ultimately terminated Reichard, and the Court supported the employer’s position.  The Court felt that Reichard's deliberate and continuous lying to the employer amounted to Willful Misconduct, calling into question "the trust, integrity and honesty required of him." Said the court: 

While the married Reichard certainly put himself between a rock and a hard place because of the affair, he compounded his problems significantly by deliberately and continuously lying to Kuntz and then deliberately and willfully disobeying orders from his superior.

This outcome gives both the employee and employer things to consider.  The employer should have a policy about office romances and what conduct is considered acceptable. The employees should be aware of what the policy says, and be prepared to follow that policy.

The Reichard case makes it clear: don't lie about an office romance if you are required to disclose it. The romance itself might not get you fired, but lying about it could.

Busted For Lying On A Resume

It should go without saying not to lie on your CV, but here's a piece about resume cheating that should remind everyone to think twice before they do it:

After just four months on the job, Yahoo! CEO Scott Thompson is out of work this week after it was discovered he had lied on his resume.

While his resume boasts 1978 degrees in both accounting and computer science from Massachusetts' Stonehill College, Thompson has since admitted he never earned the latter.

Thompson isn't alone. Here's six more stories of execs who were busted for lying on their resumes.

You Can Be Fired For Facebook Postings

Brian Bell

Toronto Employment Lawyer Brian Bell - The growth of social media has provided a vehicle for some individuals to vent their frustrations on a lot of issues, including stuff that happens in the workplace. But take heed: there is no immunity in using social media to voice workplace displeasure.

A recent case involving a Canada Post employee and Facebook is a good example:

The woman had been given a three-day suspension without pay after being part of a confrontation between older workers and a younger supervisor.

Later, the company discovered a series of Facebook postings by the employee that included derogatory statements about her supervisors and Canada Post. She claimed she had a voodoo doll of one manager and also if she hadn't been drinking she would "take her out on the driveway and run her over," according to the ruling.

The posts were sent to more than 50 Facebook friends, including some co-workers, The Star reported.

Bad move.

Social media can give individuals the unjustified confidence that they can say anything they wish under the protection of privacy. They can't.

In this case, the employee was terminated for the comments. Her union - the Canadian Union of Postal Workers - grieved on the basis that she was a long tenured employee and close to retirement. The Union’s position was that some lesser form of discipline might better suit the circumstances, given the employee’s age and service.

The arbitrator considered these issues, but felt that the lack of remorse displayed by the woman, and her attitude in general, outweighed any factors for leniency.

Everyone needs to be aware. Social media can give individuals the unjustified confidence that they can say anything they wish under the protection of privacy. They can't.

Before posting something online, a question one might ask is, “Would I say the same thing to my supervisor if I were talking to them face to face?" Probably not. As a result of thinking falsely that she was untouchable, this employee did lose her job, and the arbitrator upheld the termination.

Social media does not remove the responsibilities an employee has toward their employer and their supervisor. I agree with the arbitrator’s decision in this case.

In short, take care and be aware, and if in doubt: don't post it online.

Should Random Alcohol Tests Be Allowed in the Workplace?

Testing?

Here's a look at an interesting case that's heading to the Supreme Court. At issue is whether unionized workers should have to face random alcohol tests:

It’s a fight that began with one pulp-and-paper mill worker in Saint John, and a “zero” reading on a breath-analysis alcohol test six years ago. Now, it is headed to Canada’s highest court. 

The case, which pits the Communications Energy and Paperworkers Union of Canada Local 30 against Irving Pulp & Paper Ltd., is being watched closely by employment lawyers across Canada, who say it could have broad implications.

Read the rest of the story here.

Dealing With Termination Issues On the Cheap Can Get Pricey

Brian Bell

Toronto Employment Lawyer Brian Bell - Pace Law Firm: There have been a significant number of Termination Packages pass across my desk recently with one overwhelming similarity: the Employer tends to offer the Employment Standards Act Notice amount - and, if applicable, the severance amounts - plus a couple of weeks above these statutory amounts.

The Employer, for this additional time period above the minimum, requests a “Full and Final Release” on return.

It would seem that no matter how long the Employee has been with the company, this same approach would apply. In a recent edition of the Lawyers Weekly, Daniel Lublin at Whitten and Lublin recounts the case of Hussain v. Sinclair Canada Inc. Daniel Lublin represented Mr. Hussain.

Mr. Hussain was a 36 year employee who received only the equivalent of 9 months for a Termination Without Cause. At the time of the Termination, he was 65 years old. He had not retired. The Court, in its decision/award, exceeded the prior maximum of 24 months for a long-termed employee like Mr. Hussain. Thus, the Employer’s maximum exposure of 24 months Termination had been increased to 26 months, reflecting the Court's sympathy with long-termed employees who are offered a Termination Package that is viewed as clearly inadequate.

There are other reasons Employers should consider. Employers who feel they want to deal with the Termination issue “on the cheap” can be exposed to even more expense.

While this issue may be viewed to be applicable only to those employees with a long history with their company, it may be useful for employers to remember that offering slightly above the legislation's minimum may be a very costly strategy.