Tiger Woods is returning to work this week to play in the Masters. His return to golf is predicted to bring an enormous boost to television ratings with everyone curious as to just what the reception will be like and how he will fare under the pressure.

There are certainly parallels to a traditional workplace, when employees return after a significantly difficult life event – perhaps the death of a loved one or a serious illness. Many employers access the advice of experts in such a case to help support the employee in his or her transition back to work.

However, the transition becomes that much more complex when the employee has been absent from work for reasons of which their co-workers are aware and which they may view negatively – such as a criminal investigation or charges, marital infidelity, or even a workplace dispute in which their co-workers have been involved. The good news is that these are rare occurrences, but the bad news is that they are a legal hornet’s nest. If the employer does not take proactive steps to ensure the employee’s safe return to work, the potential for the employee to be on the receiving end of ridicule and even workplace harassment is extremely high, leaving the employer exposed to potential legal liability.

Well before the employee’s return, employers would be wise to review their workplace harassment policies and ensure that they are up-to-date and encompass situations which could occur upon the employee’s return to work. The policies should also clearly set out a process which employees can follow in the event that they encounter a problem at work. Reminding employees of the existence of the policy too close to the employee’s return may draw unwanted attention to the employee, but certainly the employee could be provided with a copy and assured upon his or her return that the employer strives to ensure that all employees in the workplace are able to work in a discrimination and harassment-free environment. Lastly, the employer would be wise to monitor the situation carefully for a period of time. Ensuring that certain key management and supervisory personnel are aware of the potential for problems, while monitoring the situation discretely is also wise, as is doing a regular check-in with the employee to ensure that the transition back to work has been smooth.

And for this week, many of us will have our eyes set on Augusta to see how Tiger’s co-workers respond to him when he returns to work.

Christine Thomlinson

…is where I was yesterday, returning from vacation. As I was flying, I had the opportunity to catch up on some films that I hadn’t seen, including the Academy Award nominated film, “Up in the Air”. For those of you not months behind in your film watching like me, you will know this is the movie starring George Clooney as a “terminator for hire”. His character is retained to fly to companies around the globe and, on behalf of these companies, to conduct their employee dismissals. The plot thickens when the decision is made to begin to offer this service remotely, dismissing employees over a video screen. Some of the most brilliant performances in the film are not from the Hollywood actors, but from the individuals who receive the news that their employment has come to an end.

Interestingly, I heard somewhere that these were not exactly “performances”, as the individuals who played these roles had actually lost their jobs in the recession. Even though the film didn’t win the Oscar for Best Picture, the emotions portrayed by the dismissed employees were authentic and this certainly resonated for me as I watched the film.

I think that the film can serve as a reminder that, at the heart of every employee dismissal, there is an employee, an individual with responsibilities, aspirations, self-worth, with things they have attached to the job that are dashed when they hear that the job has come to an end. Employment lawyers can help with all of the legal mechanics around the termination process (what severance to provide, what benefits, whether to provide a letter of reference, what it should say, etc.), however, conducting the meeting itself, delivering the news and treating the employee with respect cannot be overlooked. I have seen many good severance packages go unnoticed by employees who feel crushed by the manner in which their dismissal meeting was handled.

Our economy may be recovering, but the need to terminate employees will always exist. We hope that there may be less of this over the years to come and, if so, it is all the more reason to do the ones that need to be done with care and compassion.

Christine Thomlinson

I was speaking at the Ontario Bar Association’s Annual Institute 2010 program last week. The session was entitled “Navigating the International Assignment Maze” and I was asked to speak about employment law implications. Surprisingly, there are quite a few! Although we have heard less in the last few years about the mobile workforce or employees moving for work, as the recession passes, we will likely see a resurgence in the global demand for talent, and employees will once again be moving from office to office more routinely.

Some of the most significant issues which arise with the mobile workforce involve:
(a) confirming who the actual employer is, which can be unclear when an employee is moving between related companies;
(b) determining which law applies to the employment, depending on where the employee comes from and ultimately works; and
(c) establishing the specific law which will apply in the event of a dispute.

Some of these issues are less significant when employees move between offices in the same city, but you can imagine the complexity when they move between provinces or even between countries.

Certainty can be injected into the employment relationship by confirming the above in a written employment contract. The contract can also be very useful for preventing other disputes which often occur in the context of an employment transfer. The following are just some of the issues which arise:

• Does the employee have any obligation to accept a transfer?
• What is the employer’s obligation, if any, to assist with the necessary immigration documents?
• What expenses will the employer reimburse (associated with a move), and will these same expenses be reimbursed after the assignment ends?
• If the assignment ends, does the employee have a right to return to his/her former job and/or home base?
• Will any assistance be provided to the employee to assist with the tax implications of the new jurisdiction?
• Are any special terms of employment, like incentive plans, stock option agreements, restrictive covenants, enforceable in the employee’s new jurisdiction of employment?

As you can imagine, the legal issues which can arise in the context of an employment transfer can be very complex and difficult to resolve in the absence of a written agreement. As the economy begins to turn around, we encourage those employers looking to begin transferring employees to be mindful of the above-noted issues and to consider entering into written employment agreements before the transfer occurs.

Christine Thomlinson

An interesting case crossed my desk this week. It was the wrongful dismissal case of Whiteman v. Eastern Lift Truck Inc. 183 A.C.W.S. (3d) 87. The case was recently decided by Mr. Justice Ray of the Superior Court of Justice.

What jumped out at me was how efficiently the plaintiff and his counsel made use of the procedural tools available to get a good result with minimal expense. Counsel for the defendant also deserves kudos as he agreed with the suggestion to deal with the case in this fashion.

The plaintiff was a forklift mechanic who earned $58,000 a year. He had worked for the employer for six years. No cause was alleged. The issue to be determined was the length of notice to which he was entitled, as well as whether the termination violated the Human Rights Code of Ontario.

Rather than wade through examinations for discovery and a trial, which would have made little economic sense since the plaintiff’s case was worth less than $30,000, plaintiff’s counsel brought a motion for partial summary judgment under Rule 76.07 of the Rules of Civil Procedure. Simply put, this rule allows a judge to render a decision when he or she determines there is enough information to do so, and where the judge determines that there is no need for cross examination of the parties. It appears that the evidence used was the plaintiff’s own affidavit that set out his job search. This was enough for the judge to conclude that the plaintiff was entitled to five-and-a-half months’ notice. The human rights issue, which could not be addressed using this process, was left undetermined. This will mean that it can be tried on its own at a later date, or settled between the parties. I am told by counsel that the matter took all of two hours to be heard in court.

If you are an employment lawyer reading this, ask yourself how many of the wrongful dismissal files sitting on your desk could be handled this way. If you are an employer, ask yourself the same question. If you are an employee considering engaging the services of counsel, make sure you ask if your dispute can be determined as simply and as efficiently as this. I think this case is a procedural sign of things to come.

Janice Rubin

Over the last couple of months, we have seen our employer clients engage an increasing number of “independent contractors”. This can be an effective way of getting overflow work done without adding to the headcount, and adding fresh blood to an organization.

Here are a few things to look for when structuring these arrangements:

1. Put it in writing. Even these arrangements can end in tears if there is a disagreement on the basic terms. Your best bet is to set out the agreement in writing. Things that should be included are: what the project is; what the term is; where the person will work; and what the compensation will be. The other very important thing to include is what happens if there is a termination.

2. The duck test. Just because you call your new person an independent contractor, doesn’t necessarily mean that they aren’t an employee at law. If it looks like a duck, and walks like a duck, it may just be a duck, or in this case an employee to whom you may have to pay statutory or common law notice. An independent contractor is just that – independent. If you fully integrate that person into your operation, and if you exercise control over how they do their work, there is a chance that they will be an employee at law. Look to set up arrangements that look like a bargain between two equals, with a substantial amount of control and flexibility resting with the contractor.

3. Leaving it too long. The longer the relationship lasts, the greater the possibility that someone – and that could mean Revenue Canada – will conclude that it is really an employment relationship. In that case, the employer will be on the hook to pay income tax withholdings and CPP and EI premiums for the employee, often calculated from the beginning of the relationship. This can be costly, and may be difficult to collect from the employee.

Janice Rubin

The passing of December 31 causes many of us to consider resolutions for the New Year. What will we do differently? How will we behave better? What will change?

As employment lawyers, if we could suggest our top 5 resolutions for employers and employees for 2010, they would be:

1. Prepare written employment contracts for every employment relationship.
The good news is that we’re beginning to see people being hired again. As lawyers, we will always tell you that the way to enhance certainty in the relationship is to ensure that everything that was discussed at the beginning finds its way onto paper.

2. When writing those employment contracts, think about post-employment restrictions.
Both employers and employees should think about whether there is a need for restrictions on what an employee does (competes/solicits) after the employment relationship ends. Now is the time to set this out – not later.

3. Continue to exercise care in the termination process.
For the most part, companies seemed mindful of engaging in sensitive terminations throughout the 2009 recession. We encourage the continuation of this practice even if the number of terminations drops in 2010.

4. Pay particular attention to issues of harassment and bullying in the workplace.
Pending legislative changes in Ontario mean that employers need to be addressing bullying and violence in the workplace. Residual stress in the workplace caused by the fallout of the recession may also mean a rise in this type of behaviour.

5. Be aware of changes to the Ontario litigation system.
Changes which come into effect on January 1, 2010 are hoped to bring better access to justice and a quicker resolution of employment matters for all.

From all of us here at RT LLP, we wish everyone a very prosperous and happy new year!

Christine M. Thomlinson

For those of you following the progress of Bill 168, which proposes to add explicit protections for employees against workplace violence and harassment, you will know that one of the trickier elements of the Bill is the requirement that employers perform a risk assessment of the workplace. The purpose of this assessment is to determine if any parts of the employer’s operation are vulnerable to acts of violence. Unfortunately, in its current form, the Bill does not explain how such an assessment is to be done.

I had a conversation with a client just last week that provided a great example of the kind of potential risk that an employer might uncover through an assessment. This client is a retailer, and operates out of several malls. On occasion, members of the public have come into the store and have been difficult to deal with.  Some have been overly aggressive. Even more rarely, members of the public have behaved in a violent fashion in the presence of staff. Luckily, to date, this violence has been directed at the store itself, i.e. knocked down and smashed merchandise, not the employees.

When I was reviewing this situation with the client, they mentioned that they did not know how many of these incidents had occurred and which stores were more susceptible to customers behaving this way. Most importantly, the client indicated that they did not have emergency security buttons in the store, they did not have an established security protocol, nor did they train their employees to know what to do if there was an act of violence or a threat of violence.

I suspect this is not an uncommon situation for many businesses. I plan to review this situation with my client in anticipation of the Bill coming into law. For those of you struggling with how to approach an assessment, these types of incidents might be a good place to start.

Janice Rubin

I was thinking this past week about the FIFA world cup qualifying match between France and Ireland. If you haven’t heard, France won after their captain allegedly handled the ball, resulting in the winning goal. Irish fans were irate that the captain of the French team did not admit his alleged violation.

In the workplace, we often hear of employees engaging in improper or even illegal behaviour and the question is “why don’t they just admit it?” I’m not a psychologist so I won’t speculate on motivation, but what we can say as employment lawyers is that employees should always acknowledge their misdeeds in the workplace.

Meeting the standard necessary to establish just cause for employee termination is difficult for employers, but it gets increasingly easier when an employee lies about his or her behaviour. Recent case law is replete with examples of occasions where just cause is found, not because of what the employee actually did, but because they lied about it. A word to the wise employee: “just ‘fess up!”

Christine M. Thomlinson

According to the Supreme Court of Canada, it may be necessary for a dismissed employee to mitigate his or her damages by returning to work for the same employer.

In a case released just yesterday, the Supreme Court of Canada has added a new and interesting element to the mix of termination options for employers.  The case, Evans v. Teamsters Local Union No. 31 2008 SCC 20, involved a business agent who had been employed by the Union for 23 years.  After receiving notice that his job had ended, he, through his lawyer, attempted to negotiate a severance package with the union’s lawyer.  When negotiations failed, the union advised him that he was expected to return to work to work out a 24 month notice period.  When he refused to do, the union claimed that he was not entitled to notice because he had failed to mitigate his damages by not returning to work.

While the employee was successful at trial, arguing that it would have been too difficult for him personally to return to the job, the decision was overturned on Appeal, and this was supported by the Supreme Court.

In reaching this decision, the Court took what it called a “multi-factored and contextual analysis” which included considering the fact that there was no other employment available to Evans at the time, and that viewed objectively, Evans would not have been working in an atmosphere of “hostility, embarrassment or humiliation”.  On these facts, and the Court stressed that these cases will always revolve around the facts, a reasonable person would and should have accepted the opportunity to work out the notice period.  Moreover, the Court stated that in considering whether an employee has failed to mitigate by not staying or returning to the dismissed position, there was no distinction between an employee who has been constructively dismissed or one who has been dismissed outright.

Finally, the Court has also “parenthetically noted” that Wallace damages are not subject to mitigation.  This clarifies some uncertainty in the case law across the country about this issue.

Janice Rubin, May 2, 2008

A recent case involving the termination of a short service employee, illustrates a principle that is often difficult for employers to accept.  A terminated employee’s entitlement to reasonable notice may not always be proportionate to his or her notice.

The case in point is Gingerich v. Kobe Sportswear Inc. (unreported, January 25, 2008).  Here, Mr. Gingerich, who was 38 years old at the time of his termination and had worked for the employer for five months as a sales and marketing manager, was offered two weeks of severance at the time of his termination.  Mr. Gingerich claimed five months notice, based on, amongst other things, an inducement argument.

At trial, Justice Low rejected the inducement argument, but nevertheless awarded Gingerich two and half months of notice.   This case is consistent with others that provide short term employees with pay in lieu of notice that appears disproportionate to their service.  It is an important reminder that the “one month per year of service” rule of thumb that many employers still use, and has, incidentally been explicitly rejected by the Ontario Court of Appeal, often leads to the wrong result.  It may be in the interests of some organizations to terminate an employee shortly after their employment starts.  However, as this case illustrates, assuming that the notice obligations in these circumstances are negligible, is in error.

Janice Rubin
April 8, 2008