Have You Been Constructively Dismissed ?

   The traditional firing where the employee is marched into a meeting with his or her supervisor and a human resources manager and then handed a letter informing them of the termination of their employment is not the only way that one can be terminated. Our law now firmly recognizes the legal concept of constructive dismissal.

   Constructive Dismissal is a dismissal which arises not by an affirmative act by the employer as described above but through acts and omissions on their part which may entitle an employee in law to consider their employment to have been terminated by those acts and to walk away from the employment relationship.

Unreasonable Demotion:

    Typical fact-scenarios for a constructive dismissal include the unreasonable demotion of an employee.  For example, the employee is employed as the Vice President, Marketing. He or she receives an annual salary of $250,000 plus a bonus based on company performance which historically has placed them in the range of $300,000 to $375,000 of annual monetary compensation.  One day management decides that this employee will now report to his subordinate, the Director of Local Marketing and will be denied the bonus portion of their compensation. Courts have consistently found this fact-scenario to constitute constructive dismissal.  As such, the employee is entitled in law to refuse the demotion and to commence legal action against their employer based on a theory of recovery of constructive dismissal.  The damages available to the employee are the same as if the employer conducted the traditional dismissal.

Changes in Compensation
and Benefits:

   Another change to the employment relationship which our court's have recognized as constituting constructive dismissal is where the employer makes significant and unreasonable changes to the employees compensation or benefits.  Typically speaking an employee whose contract of employment provided them with an annual salary of $150,000 a year would be entitled to consider his or her contract of employment at an end were the employer to unilaterally decide to decrease the employee's compensation.

Failure to Provide a Safe
Work Environment and to
Follow Published Policies:

   At common law an employer has a duty to provide its employees with a safe work environment.  Under our human rights statutes employers have a duty to provide workplaces free of discrimination and harassment.  The two sources of legal obligations are the rationale why many employers pass workplace polices and manuals delineating the employee's rights and how they are to be enforced and respected in their workplaces.  Many a job seeker places reliance on these published policies and manuals in their decision to both join the employer and to remain in their employment.  These policies provide employees who have traditionally been subject to employment discrimination and harassment with a significant form of security.

   An employee who is the victim of workplace bullying, harassment or other forms of  discrimination who complains, makes reasonable efforts to apply the employer's published policies in these areas and receives no protection from the employer will have a compelling case of constructive dismissal. The strength of that employee's case substantially increases where the bullying, harassment or discrimination adversely impacts the employee's health and well-being.

"Shoddy" Workplace
Investigations:

   The increased importance of the obligation to provide harassment free workplaces in today's workplaces has brought with it a corresponding duty on employers to treat employees accused of such infractions fairly.  Once again the employer's published polices on these issues often provide employees so accused with certain fundamental rights which are articulated in such policies. The right to a fair and impartial investigation is one which comes to mind.  An employee who is so accused and is denied the basic application of the employer's own stated policies with respect to how these matters will be investigated will also have a compelling case of constructive dismissal.  Again, the strength of that employee's case increases substantially where the "shoddy investigation" and the failure to follow the employer's own polices adversely impacts the employee's health and well-being.

Relocation of
Workplace:

   Relocation of the workplace is yet another change in the terms of employment which may entitle an employee to consider their employment to have been constructively terminated.  Of all of the grounds upon which an employee can ground a claim of constructive dismissal this one is easily the most challenging one upon which to base liability.  The court will evaluate the employee's claim to turn down the relocation on all of the facts and circumstances.

Seek legal advice:

   Claims of this nature are not cut and dry.  They involve the consideration and application of laws which are in a state of constant flux.  They also often involve questions of law which may go beyond the scope of employment law.

   Employees who find themselves in situations like any of the one's noted above would be well served to seek out a legal opinion.

About the author:

E.J. Guiste holds a degree in Industrial Relations from Montreal's McGill University.  He completed part of his Articles of Clerkship with the Ontario Labour Relations Board and was employed as an Employment Standards Officer with the Ontario Ministry of Labour.  Employment law and human rights represents a major part of his work as a lawyer. Tel. (416) 364-8908 - E mail: ejguiste@yahoo.com

 


   

When Can Unionized Employees Sue Their Employers ?

   The general principle in employment and labour law is that unionized employees can not sue their employers for any claims which arise from the interpretation and application of the collective agreement between their bargaining agent and employer.  This point was made clear by the Supreme Court of Canada in Weber  v.  Ontario [1995] 2 S.C.R. 929.

Employer Terminates 
Based on Criminal Act:

   In Piko   v.  Hudsons Bay Company 41 O.R. (3d) 729 the Court of Appeal for
Ontario carved out a significant exception to the general principle prohibiting
unionized employees from suing their employers for civil claims connected to
their employment and dismissal.  In that case the employee was dismissed for
theft and was criminally prosecuted for such.  The employee asserted that the
employer initiated the criminal prosecution.  The charge of theft against the
unionized employee was resolved in her favour and she sued the Hudson's Bay
Company for malicious prosecution.

   Instinctively,  the employer raised the general prohibition asserting that employee could not sue them on account of the collective agreement.  They brought a motion to strike the claim and dismiss the action. The motions judge ruled that the court had no jurisdiction over the subject-matter of the claim as the the essential character of the dispute arose from the employee's employment relationship with the defendant which was covered by a collective agreement.

   J.A. Laskin writing for the majority in Piko held that by taking the dispute out of the collective bargaining forum and bringing it into the criminal law realm the employer effectively stepped outside of the collective agreement and therefore the dispute was no longer one focusing on the interpretation and application of the collective agreement.

   The Court of Appeal for Ontario made it clear that a claim that the employer maliciously prosecuted an employee lay outside the scope of the collective agreement. The Court said:

"And the Bay's actions in instigating criminal proceedings are not directly related to the
dispute over whether Piko was unjustly dismissed.  The Bay's actions are neither a
prerequisite to nor a necessary consequence of its dismissal of Piko.  In short, the
collective agreement does not regulate the Bay's conduct in invoking the criminal
process, which is the conduct at the heart of the present dispute.  The dispute, therefore,
does not arise under the collective agreement."

Seek Legal Advice:

   Civil claims involving high-handed dismissals, malicious prosecution or dismissals contrary to public policy such as the Human Rights Code are not your average wrongful dismissal action.  It is prudent to seek out the advice of a lawyer with knowledge and experience in this area before agreeing to any settlement.

About the author:

   E.J. Guiste handles high-handed wrongful dismissal, malicious prosecution and breach of public policy statutes such as the Human Rights Code.  He represents client  in all facets of the process from providing opinions, investigations, representation at mediation, trials and appeals at all levels of court.

   

Constructive/Wrongful Dismissal: A Covid 19 Update

   Some employers have taken the Covid 19 Pandemic to give them a green light to resort to the freedom of contract mentality of the early industrial revolution to extract major concessions from employees and even put the lives of employees in danger.  This is regrettable but by no means surprising. The following is a list of some of the fundamental rights which employees have secured in our law over the years which are of paramount importance during these trying times:


1.  Employers have a common law duty to provide a safe work environment for their employees. This has been interpreted to mean that where the nature of the work has inherent dangers which can be curtailed by special tools and equipment, the employer is to provide those.

2.   Statutory enactments over the years have also gone so far as to provide employees with the right to refuse to perform work which may expose them to bodily harm or death. In Ontario section 43(3) of the Occupational Health and Safety Act provides employees with the right to refuse work they believe to be dangerous to themselves or other workers. Regrettably, the list of exempted employees is huge and includes persons working in hospitals.  Unions representing hospital employees will need to be vigilant in holding employers to their obligations in providing safety equipment to those employees who must provide services and care to patients in highly contagious settings. 

3.   Unless you are covered by a collective agreement, the common law does not recognize the concept of a temporary layoff.  An employee who is placed on "layoff" by their employer as a result of the Covid 19 Pandemic may consider themselves to have been constructively dismissed and sue their employer for damages.  Of course the employee would be well advised to seek legal advice in order to weigh the pros and cons of asserting this right. Not every employee will be able to assert this right with a degree of success.  In fact, most will not. 



About the author:

E.J.Guiste represents clients in employment and human rights law matters - litigation,
if necessary.  His focus is primarily on high-handed dismissals and those based on the
breach of public statutes like the Human Rights Code of Ontario and other statutory
laws. He is available for remote consultation. Tel(416) 364-8908 for a reasonable fee. 

Supreme Court Rules on Incivility as Professional Misconduct: Lawyer's State of Mind Matters

Relevant Excerpts from
The Majority's Reasons:


  [122]                              While I take no issue with the Appeal Panel’s approach, I am respectfully of the view that the Appeal Panel unreasonably found Mr. Groia guilty of professional misconduct. In assessing “what” Mr. Groia said, the Appeal Panel reiterated that misconduct allegations or other challenges to opposing counsel’s integrity cross the line into professional misconduct unless they are made in good faith and have a reasonable basis. The Appeal Panel accepted that Mr. Groia’s allegations of misconduct were made in good faith. It based its finding of professional misconduct primarily on the fact that his allegations lacked a reasonable basis. However, contrary to its own approach, the Appeal Panel used Mr. Groia’s sincerely held but erroneous legal beliefs to reach this conclusion — one which, as I have explained above at paras. 88-91, cannot be reasonable.

[123]                              Once the allegations of impropriety — what Mr. Groia said — are no longer in the mix, it becomes apparent that the other factors in this case cannot reasonably support a finding of professional misconduct against him. As I will explain, the frequency of Mr. Groia’s allegations was, to some extent, a product of the uncertainty surrounding the manner in which abuse of process allegations should be raised — a factor the Appeal Panel did not consider.

[124]                              Moreover, the trial judge took a largely hands off approach and did not direct Mr. Groia as to how he should be bringing his allegations. Eventually, the trial judge did intervene, albeit quite late in the day, and he instructed Mr. Groia not to keep repeating the same allegations over and over again, but to simply register his objection. In response, Mr. Groia complied, albeit with the odd slip. And when the reviewing courts admonished Mr. Groia for his behaviour during Phase One of the Felderhof trial, Phase Two proceeded entirely without incident. Again, the Appeal Panel did not factor the trial judge and reviewing courts’ response to Mr. Groia’s behaviour and how Mr. Groia modified his conduct thereafter into its analysis.

[125]                              Taking these factors into account, I am respectfully of the view that there is only one reasonable outcome in this matter: a finding that Mr. Groia did not engage in professional misconduct on account of incivility.


    The Supreme Court of Canada's decision to overturn the Law Society Tribunal Appeal Panel's decision is grounded in their finding that there must be subjective fault or intent on the part of the lawyer with respect to assertions of impropriety directed towards opposing counsel or the process. The court clearly recognized that the administration of justice and the public interest is better served by affording lawyers flexibility to make strong allegations where they believe them to be well founded. The same is true of advancing novel legal arguments.  Below is an excerpt of what the court said:


[88]                              That said, the reasonable basis requirement is not an exacting standard. I understand the Appeal Panel to have meant that allegations made without a reasonable basis are those that are speculative or entirely lacking a factual foundation. Crucially, as the Appeal Panel noted, allegations do not lack a reasonable basis simply because they are based on legal error: at para. 280. In other words, it is not professional misconduct to challenge opposing counsel’s integrity based on a sincerely held but incorrect legal position so long as the challenge has a sufficient factual foundation, such that if the legal position were correct, the challenge would be warranted.

[89]                              Nor is it professional misconduct to advance a novel legal argument that is ultimately rejected by the court. Many legal principles we now consider foundational were once controversial ideas that were fearlessly raised by lawyers. Such innovative advocacy ought to be encouraged — not stymied by the threat of being labelled, after the fact, as “unreasonable”.

[90]                              In my view, there are two reasons why law societies cannot use a lawyer’s legal errors to conclude that his or her allegations lack a reasonable basis. First, a finding of professional misconduct against a lawyer can itself be damaging to that lawyer’s reputation. Branding a lawyer as uncivil for nothing more than advancing good faith allegations of impropriety that stem from a sincerely held legal mistake is a highly excessive and unwarranted response.

[91]                              Second, inquiring into the legal merit of a lawyer’s position to conclude that his or her allegations lack a reasonable basis would discourage lawyers from raising well-founded allegations, impairing the lawyer’s duty of resolute advocacy. Prosecutorial abuse of process is extraordinarily serious. It impairs trial fairness and compromises the integrity of the justice system: Anderson, at paras. 49-50; R. v. O’Connor, [1995] 4 S.C.R. 411, at paras. 62-63. Defence lawyers play an integral role in preventing these dire consequences and holding other justice system participants accountable by raising reasonable allegations. Finding a lawyer guilty of professional misconduct on the basis of incivility for making an abuse of process argument that is based on a sincerely held but mistaken legal position discourages lawyers from raising these allegations, frustrating the duty of resolute advocacy and the client’s right to make full answer and defence. 

Commentary and Analysis:

   Regulatory bodies across Canada will need to reevaluate their approach on prosecuting lawyers for incivility in light of this ground-breaking decision from the Supreme Court of Canada.  Their prior approach to these prosecutions which appeared, at least to this observer, to view the fault requirement on these complaints along the lines of a strict liability offence must change.  

   Careful consideration will need to be taken to ascertain whether and to what extent they have evidence that the subject lawyer did not hold a good faith belief in their submissions or comments.  Perhaps even more significant - regulatory bodies will now need to take a more careful look at the source of the complaint against a lawyer.  Is the complaint coming from a party to the lis ?  Is the complaint coming from a source or party that may have an interest in undermining the subject lawyer's work ?  

   Complaints coming from administrative tribunals in the form of an addendum to their decisions which contain self-serving and illogical pronouncements such as "this conduct is not relevant to this decision" and which accuse the lawyer of bringing meritless motions and which are then widely published in the media and on social media by a member of the said tribunal ought to be carefully scrutinized so as not to adversely impact the legal rights of not only the subject of the complaint but the subject lawyer's client(s).(see for example - Justices of the Peace Hearing Panel in Re Massiah - Compensation Decision - On Twitter - see Deborah Livingstone@dresdengirrl - June 17, 2015)

   Similarly, complaints coming from a party to the lis such as the Crown in criminal matters should always be carefully scrutinized.   

   Above all, regulatory bodies will, now, more than ever, want to ensure that the proceedings which they do decide to bring to public hearings against lawyers for incivility have a strict adherence to fairness, transparency and public interest.  Persons associated with regulatory bodies which bring such proceedings against lawyers must be careful that they do not express strong and damning views in the media which can been seen by the public to be pre-judging or "rail-roading" the subject lawyer.

At the end of the day lawyer regulation must be seen to be done in the public interest.

About the author:

E.J. Guiste, like Mr. Joe Groia, believes that a lawyer's job is to fearlessly represent his client. This belief and the hostile reception he received from the JPRC Hearing Panel during his defence of H.W. Massiah led him to write A Catholic Lawyer's Prayer - a piece in which he shares with his readers the vulnerability of the advocate who stands up in strong defence of his client. Readers ought to read it.