Latest news with #constructiveDismissal
Yahoo
19 hours ago
- Business
- Yahoo
Howard Levitt: Judge awards more than $300,000 in constructive dismissal case
A consequential decision by Ontario Superior Court Justice R. Lee Akazaki last month provides valuable lessons for employers on what not to do. Joanna McFarlane was both a victor and victim of the COVID-19 pandemic. She began working with her former employer, the Toronto advertising company King Ursa, in March 2019 as its director of analysis and insights. About a year later, COVID hit and the company faced financial challenges, reducing its workforce from more than 40 people down to 10 to ensure its survival. McFarlane was at first a beneficiary of this and was promoted to VP media and analytics. Shortly thereafter, she was promoted again to executive VP media and analytics, with a salary increase from $220,000 to $300,000 a year. McFarlane then went on maternity leave, during which time the company's cost-cutting efforts proved insufficient and it slid further into the red. Twice it deferred McFarlane's return from leave due to its worsening cash flow and discussed with her the prospect of severance. Ultimately, King Ursa provided McFarlane with a letter demoting her to her previous VP position and reducing her compensation to $210,000. She then resigned and claimed constructive dismissal. The company tried to sugar coat the situation by writing that, 'There is no executive here that is not needed, valued or wanted. Please do not feel that you are being dismissed.' It let her know that others were being dismissed, and that all executives were taking a pay reduction. Of course, not returning an employee to their previous position upon their return from maternity leave, let alone reducing their wages, is a violation of both the Employment Standards Act and human rights legislation. But this was a court case, not one before either of those tribunals. In concluding that there was a constructive dismissal, the court stated: 'The fact that the company's circumstances made the conduct of (the owners) more understandable in real-world context did not excuse them of their legal obligations as an employer. The business had legal obligations. If it cannot afford to keep an employee, it must provide notice or payment in lieu.' The court found that McFarlane overreached somewhat in the case by arguing that the owner had created a toxic environment, an allegation too readily made by plaintiffs' counsel these days and which can redound against their clients — particularly when not established, as it puts the reputation of the employer at risk if there is no basis for it. The court found that the allegation made in this case, which was obviously embarrassing to the owner although he admitted to it, had nothing to do with McFarlane. Justice Akazaki also noted that 'companies undergoing financial stress tend to allow anxiety to absorb the atmosphere' but found no grounds to hold that (the owner) made it hard for McFarlane to continue working at King Ursa. Despite her short length of service of just over three years, the judge awarded McFarlane 12 months' severance. In particular, he relied upon the lack of comparable employment available to her. I have always argued that availability of comparable employment should be the most important factor in determining notice/severance because wrongful dismissal arises from the law respecting breach of contract, and the degree of difficulty in replacing the contract is how damages are determined in the event of a breach. But few courts have as explicitly relied upon employment availability as the overriding factor to the extent that Justice Akazaki did here. The decision is another death-knell to those who attempt to emphasize length of service as a determining factor. That has never been the law. That confusion has lead to too many misleading severance formulas, as well as being a common misconception. The employer argued that McFarlane had not fulfilled her obligation to mitigate, i.e., look for other employment, in attempting to reduce the 12 months awarded. Although McFarlane's job search documentation was not permitted to be introduced as it was submitted too late to the court, the fact that McFarlane took a lower paid consulting assignment marketing wine after only a month convinced the court that she was serious about replacing her income. Of importance to all employers and lawyers acting for them are the court's words: 'The employer bears the burden of proving the employee failed to mitigate, including that they could have procured other employment of an approximately similar kind. The party in breach has a high onus, because they are demanding positive action from the sufferer of the breach. Any reduction of the severance requires cogent evidence proving not only the lack of effort but also the ability to secure comparable employment.' Turning to additional damages, Justice Akazaki noted that, whatever King Ursa's economic needs might have been, there was no economic basis for the demotion, adding that the demotion 'struck an employee's vulnerability as a person who had built her professional identity and status through thought and industry.' The court rejected the allegation of discrimination based on gender or because she took a maternity leave, although the fact that she was returning from one was a defining fact in its attempt to redefine her employment terms: 'The circumstances of her isolation from the company during her extended maternity leave contributed to a need for heightened sensitivity and professionalism in the renegotiation of her compensation or severance based on the company's undeniably poor financial performance. So, for the purpose of moral damages, the analysis was based on her handling not on discrimination.' Since the conduct was not malicious no punitive damages were awarded, but McFarlane was awarded $40,000 in moral damages, which the court defined as being in the mid-range of such awards because of the financially unnecessary demotion. It was clear that no moral damages would have been awarded if only her salary had been cut, although it still would have been a constructive dismissal. Sometimes 'I quit!' is no resignation at all Howard Levitt: CUPE should support its members, not a foreign authoritarian regime In the case of Doran v. OPG, in which I acted, every other employee but Doran accepted Ontario Power Generation's changes, just as the other senior executives at King Ursa accepted a compensation reduction. But, as in Doran, the employer is not entitled to materially reduce compensation, regardless of the rationale, good faith or its acceptance by others, without it being a constructive dismissal. Howard Levitt is senior partner of Levitt LLP, employment and labour lawyers with offices in Ontario, Alberta and British Columbia. He practices employment law in eight provinces and is the author of six books, including the Law of Dismissal in Canada. Error in retrieving data Sign in to access your portfolio Error in retrieving data Error in retrieving data Error in retrieving data Error in retrieving data
Telegraph
5 days ago
- Business
- Telegraph
Tartan shop embroiled in swords and sexism row
A popular tartan tourist shop on Edinburgh's Royal Mile was embroiled in a bizarre sexism row. Santiago Cubillo, a sales assistant, was accused of not giving female customers swords to hold in souvenir photo shoots at the Tartan Weaving Mill near Edinburgh Castle. The shop contains an armoury and studio where visitors can dress up in costumes and have pictures taken. However, Mr Cubillo was accused of sexism by colleagues for allegedly failing to hand out sword props to female tourists. He claimed he was the victim of a 'good old-fashioned smear campaign' by one of his accusers, who he alleged saw him as an 'obstacle' in her quest to become head of the store's photo studio. An employment tribunal in Edinburgh awarded Mr Cubillo nearly £5,000 in damages for constructive dismissal. His other claims of age discrimination, harassment and victimisation failed. Mr Cubillo, who was moved to another store while his complaints were investigated, quit his job after he was not allowed to come back to his original place of work. Now, after successfully suing the Tartan Weaving Mill's owners GL Attractions for constructive dismissal, he has been awarded £4,748 in compensation. Employment Judge Murdo MacLeod ruled: '[GL Attractions] made no effort to engage with [Mr Cubillo] about returning to his home store, and as a result, his frustration with that point, and his deep sense of injustice about this and other matters, led, in our judgment, to his resignation.' GL Attractions claimed that rota issues were responsible for the fact that he was not returned to the original store, but the tribunal found that the evidence suggested this was not the case. The judge added: 'It is therefore our conclusion that [GL Attractions] did act in breach of [Mr Cubillo]'s contract of employment by failing to take prompt action to arrange for [Mr Cubillo] to return to work in the Tartan Weaving Mill once his grievance had been substantially upheld.'
Irish Times
25-06-2025
- Irish Times
Worker who said she was forced to quit Arranmore Island co-op over ‘cute hoorism' remark loses claim
An Arranmore Island co-operative worker who claimed she was forced out of her job, alleging its then-chairperson 'slighted' her in public with a remark about 'cute hoorism', has failed in a constructive dismissal case. The Workplace Relations Commission (WRC) has rejected a complaint under the Unfair Dismissals Act 1977 against Comharchumann Oileán Árainn Mhór CTR by Fiona Glynn in a decision just published. The community organisation, which operates sporting facilities, holiday homes, a cafe and a cultural centre on the Co Donegal island, had wholly denied the claim. Its solicitor said its defence was 'hampered' by the fact that the worker had 'wiped thousands of emails' from the organisation's systems before quitting in August 2022. READ MORE Ms Glynn said what brought about her resignation was that she had been 'publicly rebuked' by the then-chairperson of the Arranmore co-operative. Her evidence to the WRC was that the chairperson 'slighted' her by making 'a reference to 'cute hoorism' in a context regarding [her] in a public place'. She characterised the chairperson's language as 'undermining and divisive'. The complainant told the WRC that she did not use the organisation's grievance process before resigning because a 'previous disagreement' with another colleague dating back to 2020 had been resolved by mediation. She alleged she was being 'bullied' and 'did not feel safe about reporting' the issue. The co-op's position was that it was 'unaware' of any outstanding issues, the WRC heard. The co-operative's solicitor, Seán Boner, put it to Ms Glynn in cross-examination that she 'drew the maximum sick leave allowable before resigning, then left and claimed constructive dismissal'. Ms Glynn replied that she was 'trying to consider matters'. Mr Boner also pointed out in a legal submission that Ms Glynn 'wiped thousands of emails' from the employer's systems before she quit and hampering the co-op's defence of her claim. Ms Glynn said the emails were linked to her personal account, her credit card or personal phone and that she was not satisfied with the organisation's data protection protocols. Asked whether she could put forward 'any concrete example of engaging with the [employer's] grievance procedure' she 'was not able to provide any example', the WRC noted. An employee of the co-op's funding authority said in evidence that she spoke by phone with Ms Glynn and that the complainant 'had made her mind up to leave'. Adjudicator Conor Stokes wrote Ms Glynn could not 'simply disregard' a formal grievance mechanism and go on to claim constructive dismissal. 'The issue of the complainant deleting thousands of emails before she left further undermines her position that she was left with nowhere else to turn other than resignation,' Mr Stokes added. He said it would have been reasonable for Ms Glynn to 'exhaust all avenues open to her' before quitting and ruled that she 'was not unfairly dismissed' for that reason.
Irish Times
26-05-2025
- Irish Times
EBay customer support agent sanctioned for four minutes of inactivity loses dismissal case
An eBay customer support agent who quit after being written up for failing to explain four minutes of inactivity on his computer to his manager's satisfaction has lost his claim for constructive dismissal. The employee told the Workplace Relations Commission (WRC) earlier this year he had 'people dying left, right and centre' in his personal life at the time of the events that led to the warning, including a friend who 'went into the river in Navan'. His former manager said: 'Anything over 60 seconds is considered work avoidance.' A claim for constructive dismissal brought by the worker, Eanna Donoghue, under the Unfair Dismissals Act 1977 against eBay Europe Services Ltd, has been rejected by the tribunal. READ MORE Mr Donoghue quit on March 5th, 2024, the day he was told a company appeals officer had decided to leave a written warning for 'work avoidance' on his personnel file – effectively barring him from seeking promotion for a time, he said. He had been in the €41,000-a-year job for just short of seven years. The tribunal heard Mr Donoghue's former line manager, Niamh Seoighe, wrote to him on Thursday, December 21st, 2024 telling him she had observed on a screen recording that he closed off a customer issue by email in a minute and 36 seconds, but left the page open for a few minutes. 'I couldn't take it any longer,' Mr Donoghue said, telling the WRC the reprimand for 'work avoidance' followed a period when he had 'people dying left, right and centre' in his personal life, including a friend who 'went into the river in Navan'. 'For some reason that was just ignored. A perfect record for seven years, and she [his line manager] still thought it was reasonable and fair to give me a warning on that incident,' he said. Mr Donoghue's said the reprimand over the four-minute inactivity incident in January 2024 and informal 'verbal counselling' on November 28th, 2023 for lateness was linked to filing grievances, starting with complaints against two operations managers on November 16th that year. He said he was aggrieved to get 'a warning for going to the bathroom for four minutes, for not closing off an email' when he claimed he had called people out for 'doing 10 times worse' in the past. Mr Donoghue had 'informal verbal counselling' for lateness in the months before the downtime issue arose, the tribunal heard. Three instances of lateness were officially recorded on Mr Donoghue's file. The company submitted he had actually arrived late on eight occasions. The tribunal heard Mr Donoghue had car trouble at the time and was trying to get from Navan, Co Meath, to Blanchardstown, Dublin 15, by bus. He told the WRC the Minister for Transport had admitted to a newspaper 'the NX [bus] didn't turn up'. 'That was out of my control, I couldn't get to work,' he said. Mr Donoghue's position during a disciplinary meeting had been that he 'forgot to close the email' before taking a break, and that 'he might have gone to get a cup of tea', counsel for the respondent Mark Curran BL said in cross-examination. 'To this day I'm not sure,' Mr Donoghue said. 'I took a couple of calls in this time,' he said. 'You did say you took a personal call about the person in the river,' he said. 'I took a personal call, but I'm not sure if it was in that four minutes,' the complainant said. Ms Seoighe said in her evidence that she wrote to Mr Donoghue before Christmas that year looking for an explanation after observing on a screen recording from his computer that he had finished responding to the email but failed to mark himself as available for up to five minutes. 'It was call avoidance,' she said. 'If I'm going on the 'break unpaid' ops code, I'm being skipped; it's going to someone else on the team, they're getting additional calls,' she said. '[For] idle time on an email, anything over 60 seconds is considered work avoidance,' she said. Her position was that the issue was exacerbated by Mr Donoghue's failure to use an hour specifically allotted for him to answer her queries on the downtime and because of that she 'had to follow up several times'. The written warning given to Mr Donoghue by Ms Seoighe was upheld in a paper-based appeal. In her decision, adjudicator Eileen Campbell wrote that she had 'every sympathy' for the difficulties Mr Donoghue had experienced in his personal life. She wrote that Mr Donoghue 'appears to feel that he has been treated unfairly by the imposition of a first written warning for behaviour of a type he would have called out in respect of agents in the past'. 'When his team leader does her job and addresses an issue with the complainant he considers it to be unreasonable behaviour and alleges he is being targeted,' she wrote. She noted further that Mr Donoghue quit 'without any attempt at raising a grievance' about the warning. 'I am not persuaded by the complainant that resignation was his only option,' she concluded, dismissing the complaint.
Irish Times
14-05-2025
- Business
- Irish Times
I have no option but to hand in my notice as my employer is being acquired by a previous employer
The engineering company where I work is being acquired by another company. I also used to work for the company taking over my current employer. I had a very unhappy time in that place as did many others because there is a very bad working culture in the acquiring company. We are being told that there will be no redundancies – voluntary or compulsory. I have no option but to hand in my notice. Would I be entitled to constructive dismissal in these circumstances? READ MORE The reader's case, as described, is an 'unusual and unlucky' situation for an employee to find themselves in, according to experts in employment law and human resources, though they advise not to make any hasty decisions and to use processes available to them. Anne O'Connell , principal of employment law firm AOC Solicitors, believes the reader might be 'jumping the gun' in this case, saying the acquiring company could be under new management, and the takeover might not necessarily mean both are merging. 'They might just work alongside each other and there might be no changes in the personnel, so I think they should see it out and see what happens,' she says, advising not to 'assume anything'. The reader in this case cannot claim constructive dismissal based on their previous experience with the acquiring company, she says, as it was a separate employment and period. 'Unless the new owner actually does something to them in the present, and doesn't remedy it, and they go through the internal procedures first, there's no constructive dismissal,' she says. 'They haven't had dealings with this company in this current role; they can't say their current role is made impossible because something has happened in a different employment, in a different role, in a different location before,' she says. O'Connell advises staying put and seeing how the transfer transpires, and if the employee finds themselves in the same scenario as they did prior, they could lodge a grievance. After the internal grievance process has been exhausted, and if the problem remains unrectified, there could be an avenue for constructive dismissal. 'Only at that point, if the conduct is serious enough, should they look at constructive dismissal, but only if they can objectively say: 'I can't continue in this job,'' she says. Should someone choose to pursue this route, the internal grievance process must be used first, and the employer must be given an opportunity to mend the problem. Will DoorDash takeover of Deliveroo mean better pay and conditions for gig economy workers? Listen | 28:33 Earlier this week, US meal delivery group DoorDash agreed a deal to take over its British rival Deliveroo, which has a big presence in deal is valued at £2.9 billion and will pit the merged group in competition with other online delivery platforms such as Just Eat and Uber Cant is an author and senior lecturer from the University of Essex and also worked for Deliveroo while he was in joined host Ciarán Hancock on the line to discuss the merger and what it might mean for Deliveroo's battalion of gig economy workers and for retailers using the online ordering on this week's Inside Business, the Department of Finance's annual progress report on the Irish economy, a document that informs budgetary strategy and is filed with the European week it brought news of a slowdown in growth, reduced job creation and a significant fall in corporation tax Burke-Kennedy covered the story for The Irish Times and explained the headline numbers in the report and what impact Trump's tariffs will have on Irish economic growth this by John Casey with JJ Vernon on sound. Constructive dismissal is a 'very hard case to bring home for an employee,' she says, in which the employee must prove they had no choice but to resign due to the actions of their employer. 'It's a very last resort, it's a very hard case to win,' O'Connell says. Michelle Halloran , independent HR consultant and workplace investigator, of Halloran HR Resolutions, agrees that circumstances may have improved within the reader's former company. 'Maybe the management has changed – often, people have problems with a particular line manager, there's always a possibility a few years on that it might be a better environment,' she says. However, a period of consultation with employees prior to transfer, which is required, might provide an opportunity for the reader to raise concerns with their current employer, ahead of the acquisition. This would be an chance to raise prior experience in working under the acquiring company, outlining the fact that they do not want to work for them and why. However, documentation such as previous written complaints or grievances made while working under the acquiring company are vital. Should the reader have such documentation, their current employer might approach the acquiring company on their behalf, and both might work towards a solution. While the incoming employer will be the one to make the decision, they may opt to allow for a redundancy package in this case, particularly if there are records to back up the claim. 'If they never raised anything and they just quit, and they're very unlucky and go to work for someone else and they end up being transferred back to the original employer, if there's no record, they don't really have a leg to stand on,' she says.
