Posts Tagged ‘Igor Poroger’

Employees Beware: Reasonable Notice is a Double-edged Sword

March 23rd, 2012

A recent Ontario Court of Appeal decision has endorsed the position of the Ontario Superior Court of Justice, that employees may owe their employee a significant amount of notice when planning to leave their employment. In the case of GasTOPS Ltd. v. Forsyth, four former employees of a company left their employment to start their own, competing business. Each of the four former employees provided the employer with two weeks notice, often considered to be a reasonable amount of time to offer when resigning from a job. However, given the importance of the roles that these employees played in the company they left, the trial judge held that they were integral to the direction and guidance of the company.

In upholding the trial judge’s decision, the Court of Appeal has reinforced the position that employees who are aware of their importance to the operations of their employer, and violate their responsibility to the employer by failing to provide adequate notice of resignation, may be financially liable to the resulting damage caused to their employer. In the GasTOPS case, the former employees, and their newly formed company, were found liable for damages to their former employer in the amount of over 12 million dollars, calculated as the amount of profits earned by the former employees through their newly formed company over a 10 year period. As well, an additional 3 million dollars in pre-judgment interest, and over 4 million dollars in legal costs, were awarded to the employer.

With regards to notice period, the trial judge noted the following:

“Failure of an employee to provide adequate notice will entitle the employer to an award of damages. Generally, reasonable notice is meant to give the employer time to hire and train a replacement. In determining the time required to hire and train a new employee, one must look at the nature of the employee’s position and the area of work that the employer was competing in.”

The Court of Appeal upheld the trial judge’s finding that the former employees had owed approximately 10 months notice to their former employer, given their roles and time spent with the company.

Perils of taking on a second job

February 8th, 2012

While many people are forced to work multiple jobs in this tough economy, employees should ensure that they properly consult with their primary employer before taking on any other unrelated work. The recent case of a bank employee, Marilyn Patterson, who worked as a real estate agent part time, serves as a warning for employees contemplating a similar move.

Ms. Patterson had been employed with a bank for 12 years, when she received a real estate license and began working part time with a local realty office. The bank became aware of this arrangement, and requested that Ms. Patterson discontinue her real estate activity or look for a new opportunity within the bank (one where no conflict with her current duties and her real estate activities would exist). After she refused these requests, Ms. Patterson was terminated without notice. Though no other performance issues were claimed by the bank, the judge in Ms. Patterson’s wrongful dismissal suit was forced to dismiss the action. The bank had clearly outlined guidelines regarding secondary employment and conflicts of interest, to which Ms. Patterson had agreed to in her employment contract.

The bottom line is that, while not all secondary employment will be viewed as posing a conflict with one’s primary employment, employees considering such an arrangement should spend the time reviewing their company’s policy regarding conflicts of interest and exclusivity of employment. Employers are entitled to set reasonable standards, such as prohibiting bank employees (where access to mortgage authorization may exist) from working as realtors. In light of Ms. Patterson’s case, conflicts that are obvious are likely to be upheld by the courts.

Mitigation is critical in unlawful dismissal disputes

January 18th, 2012

When a terminated employee decides to sue their former employer for damages, an important factor (which is often neglected) on the part of the suing employee is their responsibility to mitigate their losses resulting from the termination. Without proper mitigation, or the necessary documentation of mitigation efforts, the former employee may be entitled to a significantly reduced damage award.

Mitigation entails that the employee has made reasonable efforts to find new employment. Such efforts can be demonstrated by documenting all online job searches, preparing an updated resume, and utilizing the services of an employment agency or search firm. It is important to note that the mitigating claimant does not need to necessarily accept any offer of employment that comes their way, but merely must prove that reasonable attempts were made.

The case of Leo Magnan, a nearly 30 year employee of Brandt Tractor in Alberta, provides a cautionary tale regarding the failure to mitigate damages resulting from an unlawful termination. Mr. Magnan was forced to retire, based on an unwritten company policy that demanded employees to step aside by age 65. Upon reaching 65 years of age, Mr. Magnan expressed his desire to remain employed, but the company refused, relying on the company policy that Mr. Magnan had consented to. Though Brandt Tractor eventually offered Mr. Magnan his job back, he refused the offer, and successfully sued the company based on constructive dismissal. Unfortunately, due to Mr. Magnan’s earlier indications that he would have accepted his forced retirement, and his failure to look for new work upon termination, the court only awarded him 3 months of income as a damage award, where he would have been entitled to a significantly larger notice period award, given his many years of service.

To summarize, despite the legitimacy of your claim for unlawful dismissal, if you cannot prove a financial loss by making reasonable efforts to find new employment, your damage award may be significantly reduced.

Slip and Falls: Winter’s around the corner, so watch your step!

December 13th, 2011

Slip: A sliding motion where the foot (shoe) loses traction with the floor/ground surface resulting in a loss of balance.

Trip: Involves a loss of balance when the natural movement of the foot is interfered with momentarily.

Fall: A drop in height of the human body.

Slips and falls are a very common cause of injury, especially during our wonderful Canadian winters. While it is our recommendation that you should always maintain a sense of caution while walking around, you should also be aware of your rights, should you find yourself off your feet!

A 2005 slip and fall case, Cooney v. Kingston (City), demonstrates that cities can be found to share the burden in recompensing slip and fall injury victims. The plaintiff in this case was a newspaper delivery man, who was familiar with the location in which the accident occurred. Though the plaintiff was wearing winter-appropriate footwear, he slipped on a piece of ice that had formed on a city sidewalk. The resulting injury to the plaintiff’s ankle, tibia and fibula had him in a cast for over six weeks, and forced to use a cane for two months.

The plaintiff took the City of Kingston to court, claiming the City was negligent in its sidewalk icing operations. The Court determined that the City was grossly negligent in failing to maintain a safe sidewalk, but also found that the plaintiff was partly responsible, for failing to keep a proper lookout. At the end of the day, both the City and the plaintiff were found to be equally negligent, and so the plaintiff’s damages were cut in half. The damage award was $40,000, so the plaintiff received $20,000 in total.

If you are injured as a result of a slip and fall, and you believe that part, if not all, of the blame lies with the person or organization responsible for the area you fell in, contact one of the Personal Injury lawyers at Devry Smith Frank LLP for a free assessment of your case.