Employment and Labour Law:

Panel Discussion – April 29th, 2015

SEMINARS | 2015

Employment / Labour Law Panelists

Mark Josselyn

Elisa Scali

Patrick Glaude

2

Fact Situation #1

PINK IS THE NEW BLACK

Pat has always been teased by his co-workers for his

flamboyant sense of fashion but the treatment has escalated to

ridicule since he announced that he identifies himself as

female and is in the process of undergoing a gender

reassignment.

When Pat complained to management his supervisor Ivan

responded that Pat’s “lifestyle choices and endless medical

appointments” were causing too much stress in the workplace

and causing hardship to those who had to “take up the slack”.

Fact Situation #1, cont’d

Ivan provided Pat with a severance package representing five

weeks’ base salary in recognition of his five years on the job

relying upon the language in Pat’s hiring letter which stated:

“Please note that employees may be terminated at any time

without cause upon being provided with the minimum period

of notice or salary in lieu of notice prescribed by the

applicable legislation.”

This same language is used by the company across the

country where the annual payroll is five million dollars although

the Ontario payroll is only two million dollars.

Fact Situation #1, cont’d

QUESTION:

What remedies are available to Pat?

Fact Situation #2

THE BEAST OF BANK STREET

Mary Butcher began her career with Mega-Mart in the late 90’s and by 2008

had been promoted through several levels to that of Assistant Store

Manager.

Her boss, Hugh Jogre, was always a bit of a bully but the relationship

significantly soured after Mary refused to assist with the backdating of

certain internal records.

Jogre began an escalating campaign of ridicule and sexism in front of her

colleagues which Mary brought to the attention of management. When

Jogre learned of the complaint he increased the level of abuse and the

public beratings. On one occasion he pounded on his chest like a wild

beast and taunted Mary that he could certainly outlast a “f*!$ing idiot like

you”.

Fact Situation #2, cont’d

Mary complained to senior management who investigated the

matter after which Mary was advised that her complaints were

unfounded and that she would be held accountable for the

unsubstantiated allegations and for undermining the authority

of the Store Manager.

Having won this round, Jogre humiliated Mary in front of a

group of employees by requiring her to count aloud to 10

“without removing her socks”.

Mary finally gave up, and tendered her resignation. She

successfully applied for long term disability benefits as a result

of workplace stress.

Fact Situation #2, cont’d

QUESTION:

If Mary can establish these facts at trial,

what remedies are available?

Fact Situation #3

THE HUNGRY GAMES

Up and Down Co. and High Low Inc. are two elevator

companies who aggressively compete for market share. Both

companies market a modernization program in an attempt to

persuade customers to upgrade their existing equipment.

Up and Down recently lost its Maintenance and Service

Supervisor, Gary Otis, to High Low. Gary was in charge of two

dozen service technicians but largely uninvolved in customer

sales, pricing and bidding.

Upon leaving, Gary was careful to return all company

documentation and property and there is no evidence of his

soliciting any customers or employees.

Fact Situation #3, cont’d

In the months following Gary’s departure, two of the Service

Technicians of Up and Down responded to an advertisement

placed in a trade journal and were subsequently hired by High

Low.

The former employer asserts that Gary has been induced by

High Low to breach his contractual and fiduciary obligations to

Up and Down and as well that he should be enjoined from

using his specialized “know how” acquired while working at Up

and Down.

The relevant portions of his former employment contract read

as follows:

Fact Situation #3, cont’d

A. You shall not during the term of your employment hereunder and

for a period of one year from its termination, either directly or

indirectly, individually or in partnership carry on or be engaged in

or concerned with or interested in, in any capacity whatsoever

(including that of principal, agent, shareholder, employee, lender

or surety) any person, firm, association, syndicate, or company

engaged in or concerned with or interested in the conception,

designing, development, fabrication, construction, modernization,

maintenance, marketing, distribution, advertising, franchising or

sale of products or services similar to those conceived, designed,

developed, fabricated, constructed, modernized, maintained,

marketed, distributed, advertised, franchised or sold by Up and

Down Co. in the course of your employment with Up and Down

Co. within the Province of Ontario.

Fact Situation #3, cont’d

B. You shall not for a period of one year from the

termination of your employment, directly or

indirectly, solicit, attempt to solicit or service any

client, prospective client or employee of Up and

Down Co. then existing or contemplated by Up

and Down Co. within 12 months prior to the

termination of your employment.

Fact Situation #3, cont’d

QUESTION:

What are the issues and what will be the result?

1. Is Gary Otis a fiduciary and has he breached any fiduciary

obligations?

2. Are the contractual provisions enforceable?

3. Can any unenforceable provisions be severed?

4. Is the migration of the Service Technicians unlawful?

5. Can the former employer enjoin the use of know how?

Thank You

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Mark Josselyn

Mark.josselyn@gowlings.com

Elisa Scali

Elisa.scali@gowlings.com

Patrick Glaude

Patrick.glaude@gowlings.com