How can I exploit missing Record of Employment for higher severance?

Fair termination pay increase for no Record of Employment and corresponding EI benefit interference.

According to Antidormi v. Blue Pumpkin Software Inc., [2004] O.J. No. 3888::

The company failed to comply with the provision in the Ontario Employment Standards Act stipulating that a Record of Employment must be provided seven days after the date of termination. Far from providing the Record of Employment in a timely way to facilitate her application for Canadian Unemployment Insurance, her Record of Employment was provided five months after the date on which it was due. Blue Pumpkin also delayed in providing her T-4 slip, in turn delaying the filing of her tax return and delaying the processing of her request for a tax refund as a result of her unemployment.

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In my view, Blue Pumpkin's conduct at the time of termination, the mandatory mediation and indeed at the trial, did reflect a blatant disregard, callous and insensitive treatment of Antidormi. Its failure or refusal to address Antidormi's concerns, to treat her fairly, reasonably and decently, taken together, amount to unduly insensitive conduct that has affected her emotionally and professionally and that ought to merit compensation.

Given Blue Pumpkin's bad faith conduct, I would extend the notice period on account of this factor by a further two months.

When can employer terminate for absenteeism?

High standard to dismiss for gross absenteeism.

According to Fleming v. J.F. Goode & Sons Stationers & Office Supplies Ltd., [1994] N.S.J. No. 249 (N.S.S.C.):

Absenteeism as a justification for dismissal, without notice ... [faces] ... twelve factors considered by the Courts in assessing whether the absenteeism, in the particular circumstances, is sufficient cause for summary termination:

"(1) It must be misconduct of significance"

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"(2) Failing to return promptly after a leave of absence, without advising one's employer, or taking time off despite a direct order not to do so."

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"(3) The employee took time off under false pretences."

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"(4) Prejudice to the employer's interest."

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"(5) Generally, two instances of absenteeism are required, particularly where the employee is of long service and has acted faithfully in all other respects."

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"(6) It must result from intentional misconduct, rather than just from a misunderstanding."

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"(7) It must be the fault of the employee."

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"(8) Where warnings are provided, they should specify that the employee will be terminated if his absences continue."

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"(9) Whether there is a reasonable defence, such as illness."

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"(10) The type of employment."

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"(11) An employee's history of long service without a record of significant absenteeism can be used as a mitigating factor."

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"(12) The onus of proof is on the employee to establish that he has received permission to take a leave of absence."

What is employee's duty to mitigate their wrongful dismissal damages?

Employer bears heavy onus to prove failure to mitigate.

According to the Supreme Court of Canada, if the defendant argues that the employee could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue. In Michaels v. Red Deer College, [1976] 2 S.C.R. 324 at 4 (S.C.C.).

Laskin C.J. stated:

[i]f it is the defendant’s position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue…The employee should be allowed an appropriate amount of time to adjust to his or her situation and plan for the future before strictly imposing the obligation of mitigation and … [a]n employee’s failure to attempt to mitigate for the first few months after termination may be excusable where it is due to distress caused by the termination…[t]he bottom line is that courts will stop short of imposing an undue hardship on the employee. In that regard, it is noteworthy that the courts will afford the employee a brief “breathing space” of one or two months following the date of dismissal before requiring him or her to fulfil the duty to mitigate. The purpose is to allow the employee to recover from the shock of the dismissal.

In order to prove failure to mitigate damages, an employer is required to prove no less than the employee rejected a suitable position or made no effort whatsoever to find other employment. In his Wrongful Dismissal Handbook, at 6-40.9. Mr. Justice John R. Sproat writes:

[i]t is virtually impossible for an employer to prove a failure to mitigate damages in the absence of evidence that the employee rejected a suitable position or made no efforts whatsoever to find other employment.

According to Hadjis v. Morningstar Research Inc., [2006] O.J. No. 1417 (Ont. Div. Ct.):

The learned judge further held that though the respondent's mitigation efforts were "less than satisfactory", she was not prepared to conclude that the evidence justified a discounting of the plaintiffs entitlement on reasonable notice. At page 35 of her reasons, Horkins J. concluded:

"In this case there is no question that the plaintiffs mitigation efforts and documentary proof of such efforts are less than satisfactory. However, I cannot conclude that no efforts were made to find other employment and for this reason I reject the defendant's argument that a failure to mitigate exists that merits a reduction in the notice to which the plaintiff is entitled."

Meanwhile, no plaintiff is required to conduct a fruitless job search as a condition of being awarded damages in an action for wrongful dismissal. According to Laskin C.J. in Veer v. Dover Corp. (Canada) Ltd. [1997] O.J. No. 3821at ¶ 55 (Ont. Gen. Div.):

A plaintiff is not required to conduct a fruitless job search as a condition of being awarded damages in an action for wrongful dismissal. After all, it is the defendant’s wrongful conduct which has put the plaintiff in the position of seeking employment. It seems to me, that following a dismissal in circumstances such as these, it would be unfair to require a plaintiff to subject himself to the added humiliation of further rejection when it is evidence that mitigation is quite unrealistic. A plaintiff must only mitigate if he can.”

When are managers still entitled to overtime pay?

Employment Standards Act (“ESA”) managerial overtime exemption applies only to those employees "whose only work is supervisory or managerial in character".

Especially where no direct reports - let alone any discretion nor independent judgment in management affairs at all - too many employees are manager in name only, and therefore entitled to significant overtime monies claimed.

According to 595749 Ontario Ltd. v. Ilowski, [2001] Canlii 14888 (O.L.R.B.):

"At the same time, one cannot impute managerial status to any employee whose job duties include some tasks which might be considered managerial in nature, or who has some involvement in the management team, as the term 'only', as is noted by the Divisional Court, balances the notion of 'character'. The term 'only' has to be given some meaning, and while it does not preclude the performance of some duties other than those which are supervisory or managerial in character, it does not permit the exclusion of an employee whose main job duties cannot be so characterized."

Wrongful dismissal advice in the age of social media.

1) Employers search social media when hiring, to learn more about prospective candidates than what typically comes across from a standard interview, resume, and cover letter. Therefore smart job-seekers will want to improve their linked-in and Facebook profiles to come across as more stable, social, and connected over all.

On the other hand, racy photos, inflammatory political comments, weird interests, too many typos, and bathroom humour may deprive you of the white-shoe accounting firm job you otherwise stood to land. So long as employer's not breaching human rights law, companies can and will lawfully discriminate against job candidates based on their social media profile and affiliations.

2) Employees get fired for social media comments where disparaging bosses, and/or threatening co-workers. Unfortunately, employees typically don't spend the kind of time/attention proofreading their Facebook status updates as they do their resumes and cover letters.

In our practice, we've seen a significant post-2010 increase in employees terminated because of social media complaints about their employers, co-workers, suppliers, customers, and other workplace contacts.

Too many employees believe these comments are just circulating among friends, however don't realize how often their work "friends" will turn these comments over to their employer for political gain. We've also seen an increasing number of cases where the employer intentionally planted co-workers to befriend these employees in the first place for specific purpose of digging up ammunition to then terminate these loose-lipped employees for just cause without severance.

3) On the other hand, employers are more vulnerable than ever to disgruntled employees looking to disparage their employers on-line. Whereas a terminated employee will have previously told a handful of acquaintances about their company's underhanded dealings, that same terminated employee will now magnify those disparaging allegations exponentially through Google review, Yelp, Facebook, and endless other social media websites appealing to these unemployed complainers with much free time on their hands. For this reason, employers are sometimes better paying off a terminated employee with a nuisance value severance package than investing hundreds of thousands in having to defend their former top-100 employer reputations on-line.

4) Social media can magnify the emotional/reputational effects of termination. Whereas a terminated employee would have previously had some time to transition to their next job before explaining to friends/family about their workplace change, it's now far more difficult to keep embarrassing terminations under wraps when their Facebook friends have grown accustomed to their daily status updates about day-to-day goings-on at work.

5) Finally, social media turns employment lawyers into on-line detectives. Employees are constantly coming across re-postings of their former positions as evidence that their jobs were not in fact getting outsourced as alleged by their boss. On the other side, employers are consistently searching employees' Linked-in and/or Facebook profiles to discover that mentally distressed employee has actually been partying in Vegas or landed an even higher-status/pay job within just a few weeks of termination.

Either way, social media has certainly made the employment law field more high-stakes, explosive, and fortunately/unfortunately lining the pockets of lawyers on both sides.