Thoughts from a Management Lawyer

VIA Heads to Arbitration

Yesterday I posted about the spill off consequences flowing from the VIA and City of Toronto strikes.  Today we hear that VIA and the Teamsters are going to final and binding arbitration to resolve their outstanding issues.  Given the rhetoric, this was a surprise.  The layoffs reported yesterday have been canceled.

In other news, the City strike is "down to the wire" with a midnight deadline thrown up by one of the unions.

The Impact of Strikes

Day 35 of the Toronto city workers strike, and no end in sight (in fact, one of the unions representing the workers has indicated that they will walk away from the bargaining table if they haven't reached a deal by midnight Sunday).  The Windsor municipal strike ended recently after 101 days so we'll see if that has any impact in Toronto.  And now we have the VIA engineers strike.  

But these strikes don't simply impact those who are walking the lines (and their families) but also those employees that VIA has been forced to layoff because of the strike.  And what of the public?  In VIA's case, thousands of travelers have been stranded.  In the case of Toronto municipal workers, well, the garbage piles up and we are oddly grateful for the cool weather and rain. 

Overtime Class Action to be Appealed

It would seem that the Ontario Court's recent ruling that refused to certify a class in the highly publicized CIBC overtime class proceedings will be appealed.  That according to the excellent Financial Legal Post.  Of course, no one is falling off their chair in surprise at this news given what's involved.

The Statement of Claim sets out the nature of the allegations.

National Post Series on Labour-Management Relations and More

The National Post is running a series of articles on labour-management relations during the economic crisis.  I was interviewed for the article Getting Real that has now been published.

Speaking of the economy, last Thursday I spoke at a Canadian Institute conference called "Workforce Restructuring: Practical Guidelines and Legal Strategies for Reducing Employer Liability in Difficult Times" about "Structuring the Severance Package: Innovative Solutions for Difficult Times". 

 

Be Careful When Drafting Termination Letters

That's the lesson from a recent Ontario Superior Court case. 

The plaintiff was hired by the defendant on November 28, 2005 for the position of full-time receptionist and was promoted to the position of Executive Assistant in 2008 at an annual salary of $36,000.  Her employment was terminated on November 28, 2008 at which time she was presented with a severance package that provided, in part as follows:

You will receive an additional five months pay in lieu of notice of termination as per our obligations under the Employment Standards Act of Ontario.

The Employment Standards Act would have provided the plaintiff with only 3 weeks pay, significantly less than 5 months pay.   The plaintiff signed and accepted the terms of the offer.  A few days later the plaintiff attended at the workplace to return some property of the employer at which time she was advised that there was a mistake in the offer. 

The plaintiff was told that she "... would only be receiving three weeks’ termination pay.  The plaintiff was asked to sign a release which she did not do."

The question was whether there was an enforceable agreement that the plaintiff could enforce?

The Court found that such a contract existed:

The letter represented the employer providing consideration it owed to the employee.  In the absence of any demonstrated intention of the employer to deal separately with its common law obligations, the submission that the letter was intended to deal only with the statutory obligations of the employer cannot stand.  The letter was to be the completion of the contract.  It represented not only the fulfillment of the employer's statutory obligations, but also its effort to conclude its common law responsibility to provide reasonable notice or pay in lieu of that notice.  The acceptance of the letter would represent the completion of all the employer's obligations. ....

So, the lesson is clear.  Take time to review the terms of any termination letter or, for that matter, any offer.  Any contract requires that three things be present (1) an offer, (2) acceptance and (3) consideration.  Someone mentioned to me yesterday the master carpenter's motto "measure twice, cut once".  That can be modified to fit the employment model as well.

Who's keeping Toronto going?

That's what the Globe and Mail asks as the City's municipal workers strike closes in on 2 weeks.  It's an interesting article focusing on the impact of the strike not on the public, the strikers or the city, but on the people and their families that are trying to maintain a level of service through the strike.

Speaking of the Globe, the company and their union have reached a tentative collective agreement that is expected to be put to a ratification vote next week.