Employer Checklist for Avoiding Punitive Damages

     It used to be that punitive damage awards in employment related cases was something that only happened in the U.S.  However, decisions such as Pate and MacNeil from the Court of Appeal for Ontario established that employers must be mindfull of the potential for such claims.  Here is a simple checklist of things to avoid.

1.     Avoid reporting criminal conduct to the police based on speculation or bad faith;

       Many employers are of the mistaken belief that simply reporting a crime to the police will not lead to potential civil liability.  This is not entirely correct.  An employer can be found to have initiated criminal proceedings even thought they did did swear the information charging the employee with a crime.  The question as to whether the employer can be found to have "initiated criminal proceedings" as that term is used in the malicious prosecution jurisprudence depends on whether the crime is of the type where the facts can be said to be pecuiliarly within the knowlede of the party seeking police assistance.  Courts have concluded that employers did not "initiate criminal proceedings" by mere reporting in cases involving complicated frauds requiring complex investigation in order to acertain the facts (Mahon   v.  Rahn [2000] 4 All E.R. 42).   

2.     Avoid asserting cause based on sexual or other forms of harassment in the absence of a fair and thorough investigation supporting the allegation - especially where your own polices call for such;

3.     Obtain legal advice touching on the strenght of the allegations of cause and the potential costs associated with an action from the employee prior to dismissal.  Where the allegations of cause involve criminal conduct you will want to consult with a lawyer with knowledge of criminal and tort law.
 

Most Serious Mistake Dismissed Employees Make

     The importance of getting legal advice following the termination of one's employment and prior to signing-off on a settlement can not be stressed enough.  All too often dismissed employees end up being bound by post-termination settlements which they often wish they had never pursued.  All too often it is too late to correct their error.  Sometimes this failure on the part of employees stems from their fear of the cost associated with getting legal advice.  In an effort to tackle this fear I thought it helpful to set out in plain language my fees for such consultation along with the service I provide for it.  I hope it is helpful.

Fee:

     $1,000 plus HST = $1,130 - payable at the visit.  In my experience it is common practice for bigger employers to indemnify employees for this cost.

Service provided:

Work history:

      I probe the client's work history in order to ascertain the reason for the termination of employment.  The reason is not always the reason stated by the employer.  If cause is
alleged I seek to ascertain in a preliminary way the strength of this cause.  Anyone can
assert cause but cause for dismissal requires cogent proof from the employer.  Have
there been warnings, performance appraisals, etc.  Does the company have an Employee
Handbook or similar document which sets out company policies on termination and
discipline ?  Was this policy followed ?  Does the nature of the cause alleged raise issues
of impairing your future employment opportunities?

Employment Standards Act:

     I probe compliance with the Employment Standards Act - termination pay, vacation pay and overtime pay.

Human Rights Codes:

     I also probe the possibility of the dismissal being motivated by a prohibited ground of discrimination - such as race, sex or age.

Jurisdiction:

     For employees covered by the Canada Labour Code - Part III - I inform them of the Unjust Dismissal provisions of that legislation.  It provides employees with a right similar to unionized workers in that they can be reinstated following a hearing before a Canada Labour Code Adjudicator.

Employment Insurance:

     Employees whose employment is terminated on account of "misconduct" are typically denied coverage.  I explain the process to employees in terms of what to expect and how to protect their right to benefits by communicating their version of the facts to the E.I. agent.  The agent is obligated to hear both sides of the dispute.  It is critical that the employee provides their side to the agent. If your claim is denied you have a right to an appeal hearing before a Board of Referees and be represented by a lawyer. I have often represented clients in these proceedings.

Disability Insurance etc.:

     For employees suffering with illness or disability at the time of the dismissal issues of coverage and medical treatment become paramount concerns.  I probe the cause of the disability and illness and provide advice on protecting what ever rights the employee may have.      


CONTACT INFO:

      I am available for consultation and would be pleased to assist you.  Here is my contact info:

Ernest J. Guiste, Trial & Appeal Lawyer, 2 County Court Blvd., Suite 494, Brampton, ON, L6W 3W8
Tel. (416) 364-8908

ERNEST J. GUISTE, TRIAL & APPEAL LAWYER - NEW LOCATION - MOVED

       My office is now located at:

2 COUNTY COURT BLVD., SUITE 494, BRAMPTON, ONTARIO, L6W 3W8.

Telephone and Fax numbers remain the same.

Tel.(416) 364-8908   - Fax (416) 364-0973

E Mail: ejguiste@yahoo.com


I will continue to represent clients in the following areas of practice:

- Criminal (LAO accepted)
- Employment - Human Rights
- Administrative law
- Personal Injury - and
- Insurance

Justice Kofi Barnes Elevated to Superior Court

      On Thursday, February 28th, 2013 Justice Kofi Barnes was sworn in as a Justice of the Superior Court of Ontario in a ceremony held at the Superior Court of Justice in Brampton.  Justice Barnes who was originally appointed to the Ontario Court of Justice in 2004 brings a wealth of knowledge in criminal law to the Superior Court in Brampton.