Case Studies
Rubin Thomlinson LLP supports its employer and employee clients with a practical and preemptive approach that aims to avoid costly litigation whenever possible but litigate effectively when required. Our lawyers respond quickly and work collaboratively to provide our clients with the resolution that best serves their interests.
The following case studies illustrate our solutions-focused approach:
Help for American Employer Doing Business in Canada
Mass Terminations
Court Intervention to Obtain Re-payment of Employee Loan
Disability Management
International Employment Law
Workplace Investigation – Poisoned Work Environment
Mediation
Training – Avoiding Overtime Liability
One on One Human Rights Remedial Coaching – The Bully Boss
Help for American Employer Doing Business
in Canada
The Challenge
A large American employer, operating across Canada, needed help understanding Canadian rules governing the workplace. Their internal counsel and senior human resources staff were located in the United States. With several thousand employees in Canada, they needed expertise and counsel on a wide variety of workplace issues.
The Optimal Solution
Janice Rubin and James Heeney provided the American company with legal counsel pertaining to their operations across Canada. They provided expertise on Ontario workplace and human rights law, and drew on a network of legal resources outside of Ontario. Counsel continues to be provided, often on a daily basis, on matters such as employment agreements, overtime and leaves. The organization now has full access to the counsel and expertise needed to operate within the Canadian marketplace.
Mass Terminations
The Challenge
A large national retail organization decided to discontinue its manufacturing operations. Although, 200 employees were to be terminated, many of whom had long service records, hundreds of employees were to remain. The organization needed help managing the terminations and severances, wanting to appear fair to the remaining employees. They also needed to mitigate the financial risk by keeping liabilities in check and carefully managing the cost of severance packages.
The Optimal Solution
With extensive client input, Janice Rubin and James Heeney helped the client develop a severance formula broad enough to apply to the majority of employees while flexible enough to address unique circumstances (e.g., employees on pregnancy, parental or disability leave). James and Janice also recommended the use of outplacement counseling and financial planning for the terminated employees. As a result of careful and thorough planning, they mitigated the risk of what could have been a costly and devastating human resource situation. The mass termination was executed smoothly by the human resource team.
Court Intervention to Obtain Re-payment
of Employee Loan
The Challenge
A pharmaceutical company based in Ontario, hired an independent contractor to perform work in Jamaica. One year later, the company provided the contractor with an interest-free loan to assist him with a car loan, conditional upon him paying it back at $500.00 USD per month. Eleven months later, the company terminated the individual’s contract, giving him six weeks’ notice (more than the required 30 days). The contractor initiated a claim for wrongful dismissal, claiming he was an employee, not an independent contractor, and sought damages equivalent to more than 2.5 years of salary. He stopped making payments on the loan. The company counter claimed for the amount remaining on the loan.
The Optimal Solution
Acting on behalf of the company, Rubin Thomlinson’s James Heeney immediately moved for summary judgment on the loan, rather than waiting for trial. He asked that the individual post security through a court-administered trust in case costs were ordered against him. James then argued that since the contractor resided outside Ontario, it would be difficult to enforce any cost award ordered again him, since his assets were all located in Jamaica. The Court found entirely in favour of the company. The judge found that he was a resident of Jamaica, and noted that his claim was possibly in the wrong jurisdiction, given the amount he was seeking. The Court then found that the company was entitled to protection, in case costs were ordered against the contractor in his claim for wrongful dismissal. The Court ordered the contractor to post security for costs in the amount of $10,000.00 and to repay the loan immediately.
Disability Management
The Challenge
A large retail organization fired a sales employee whose epileptic seizures were upsetting customers and staff, and causing disruption in the workplace. The employee contacted the Human Rights Commission (now the Human Rights Tribunal), and the Commission mandated the company take her back. Morale in the store was very low, the seizures continued, and the employer felt powerless. How to reconcile the duty to accommodate with the undue hardship it may cause in the workplace?
The Optimal Solution
Christine Thomlinson took a three-pronged approach. First, she collected data over a six-month period to document the cost the business incurred as a direct result of these seizures. Second, she examined alternate sources of funding, consulting with organizations like Epilepsy Canada. Finally, since accommodation is a multi-party responsibility, Christine advised the client to contact the employee’s doctor and inquire about any potential risk to others and how to minimize workplace seizures for the employee. Armed with this information, she helped the client put in place an accommodation agreement, committing the employer to accommodating as long as the employee fulfilled a set of conditions. The employer had a satisfactory solution to its duty to accommodate.
International Employment Law
The Challenge
A management-level employee worked for a large Canadian-based multi-national corporation with offices in several countries around the world. The employee for several years worked in various country offices of the company around the world. He was eventually terminated by the company while working at one of its foreign locations and was subsequently provided a severance package. The client was concerned about the adequacy of his severance package. A major obstacle to addressing this issue was determining which country laws applied to his employment contract and the appropriate jurisdiction for dispute resolution.
The Optional Solution
Sharaf Sultan helped the client engage with the employer in a strategically driven non-confrontational manner designed to negotiate a more favourable severance package. Through maintaining an open dialogue with the employer, Sharaf assisted in persuading the corporation that compromise through negotiation was the best approach. The negotiation process ultimately led to the client attaining a significantly augmented severance package while maintaining an excellent relationship with the employer. Through a results oriented process, Sharaf assisted the client to effectively manage difficult international employment issues while expediting an amicable resolution.
Workplace Investigation –
Poisoned Work Environment
The Challenge
An employee working shift work for a large Ontario-based corporation alleged that, for the past two years, he had been the victim of racial taunts, name-calling, shunning, and aggressive behaviour by 10 members of his workgroup. Two different unions and their representatives were involved.
The Optimal Solution
Janice Rubin conducted a thorough workplace investigation to determine whether these incidents occurred, whether company policy was violated, and whether the organization had any legal exposure. Janice met with the complainant and his representative, as well as the respondent and his representative, and interviewed a number of witnesses. The findings, including statements from a group that witnessed the behaviour, confirmed that long-standing bad behaviour had been allowed to poison the work environment. Following the investigation, the complainant was assigned to a new workgroup, the antagonistic ringleader was fired, and the other workgroup members were disbanded and disciplined.
Mediation
The Challenge
Upon refusing to engage in an intimate relationship with her boss, a sales person in a retail organization was terminated. She filed a human rights complaint alleging sexual harassment and sexual discrimination, and a wrongful dismissal action.
The Optimal Solution
In an effort to resolve the situation quickly, Janice Rubin was engaged by both parties as a mediator. Although sexual harassment cases are fraught with emotion, making them notoriously difficult to mediate, Janice achieved a resolution in just one day. The employee received a settlement, and both parties agreed no further action was necessary. The matter was dealt with privately and quickly, saving the employer and his organization embarrassment and expense.
Training - Avoiding Overtime Liability
The Challenge
A large employer struggled to clearly identify the rules applying to overtime. After a conversation with Christine Thomlinson it was clear other legal issues were presenting problems for their human resource managers. But, how could they get their managers up to speed on these critical legal issues? And how could the necessary training fit into the 90-minute blocks of time the managers had available in their schedule?
The Optimal Solution
Christine designed 90-minute training modules to address each of the relevant legal issues. The training program was intended to help managers identify situations they could handle themselves and those requiring legal support. Christine recommended the client use their legal budget for this training, recognizing that the cost would be covered by the elimination of just one unnecessary legal file. The client agreed. All managers were then trained on the relevant legal issues in their workplace.
One on One Human Rights Remedial Coaching – The Bully Boss
The Challenge
A high-performing, senior executive within the financial services sector repeatedly engaged in angry outbursts directed at subordinates. The organization investigated and found the executive had violated their Respect at Work policy. They didn’t want to terminate this high performer, but they knew the bad behaviour had to stop.
The Optimal Solution
The financial services company sent the senior executive to Rubin Thomlinson for one-on-one human rights coaching. Janice Rubin met with the executive privately, in a non-confrontational way, educating him and alerting him to the potential legal consequences of his bad behaviour. Together, they reviewed specific company policy and more general high-risk behaviours in the workplace. They discussed what would happen should his behaviour continue and the consequent legal risk to the organization. The organization now has a record to rely on in the event the executive re-offends.
