Latest from Maghreb Alan
Yahoo
30 minutes 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
South Wales Guardian
31 minutes ago
- Politics
- South Wales Guardian
Palestine Action loses appeal hours before terror ban due to start
Earlier on Friday Huda Ammori, the group's co-founder, unsuccessfully asked the High Court to temporarily block the Government from designating the group as a terrorist organisation, before a potential legal challenge against the decision to proscribe it under the Terrorism Act 2000. The move is due to come into force at midnight after judge Mr Justice Chamberlain refused the bid for a temporary block. Lawyers for Ms Ammori took her case to the Court of Appeal on Friday evening, and in a decision given at around 10.30pm, judges refused to grant the temporary block. The Lady Chief Justice Baroness Carr said: 'The judge was entitled to take the view that the harm identified… would be the product of an individual's decision not to comply with the order.' She added that there was 'no real prospect of a successful appeal'. Raza Husain KC, for Ms Ammori, made a bid to have the case certified as a 'point of general public importance' to allow a Supreme Court bid. Baroness Carr, sitting with Lord Justice Lewis and Lord Justice Edis, added: 'You are not going to get to the Supreme Court before midnight.' The judge said that any application should be made before 4pm on Monday and refused a bid to pause the ban coming into effect pending any Supreme Court bid. In his decision refusing the temporary block, High Court Mr Justice Chamberlain said: 'I have concluded that the harm which would ensue if interim relief is refused but the claim later succeeds is insufficient to outweigh the strong public interest in maintaining the order in force.' Blinne Ni Ghralaigh KC, for Ms Ammori, told the Court of Appeal that the judge wrongly decided the balance between the interests of her client and the Home Office when deciding whether to make the temporary block. She said: 'The balance of convenience on the evidence before him, in our respectful submission, fell in favour of the claimant having regard to all of the evidence, including the chilling effect on free speech, the fact that people would be criminalised and criminalised as terrorists for engaging in protest that was not violent, for the simple fact that they were associated with Palestine Action.' She also told the Court of Appeal that Mr Justice Chamberlain 'failed properly to consider' that banning the group 'would cause irreparable harm'. Ms Ni Ghralaigh said: 'There was significant evidence before him to demonstrate the chilling effect of the order because it was insufficiently clear.' She continued that the ban would mean 'a vast number of individuals who wished to continue protesting would fall foul of the proscription regime due to its lack of clarity'. Ben Watson KC, for the Home Office, told appeal judges that Mr Justice Chamberlain gave a 'detailed and careful judgment' which was 'all the more impressive given the time constraints'. He added that the judge 'was entitled to reach the conclusion that he did'. The barrister said: 'The judge conducted a very careful analysis of all the matters he relied upon.' Mr Watson also said that the judge was 'alive' to the possible impacts of the ban, including the potential 'chilling effect' on free speech. 'There was no error by the judge in concluding that there was a serious question to be tried while at the same time acknowledging that he couldn't, on the material in front of him, say that it had strong prospects of success,' he added.
Glasgow Times
32 minutes ago
- Health
- Glasgow Times
Hamas says it has given ‘positive' response to latest ceasefire proposal
It comes as Israeli airstrikes killed 15 Palestinians while a hospital said another 20 people died in shootings while waiting for aid on Friday. The UN human rights office says it has recorded 613 Palestinians killed within the span of a month in Gaza while trying to obtain aid. An Israeli army tank advances in the Gaza Strip, as seen from southern Israel (Leo Correa/AP) Most were killed while trying to reach food distribution points run by an Israeli-backed American organisation, while others were massed waiting for aid trucks connected to the UN or other humanitarian organisations. Spokeswoman Ravina Shamdasani said the rights office was not able to attribute responsibility for the killings. But she said 'it is clear that the Israeli military has shelled and shot at Palestinians trying to reach the distribution points' operated by the Gaza Humanitarian Foundation. In a message to The Associated Press, Ms Shamdasani said that of the total tallied, 509 killings were 'GHF-related' – meaning at or near its distribution sites. 'Information keeps coming in,' she added. 'This is ongoing and it is unacceptable.' The GHF has denied any serious injuries or deaths on its sites and says shootings outside their immediate vicinity are under the purview of Israel's military. In a statement Friday, GHF cast doubt on the casualty figures and accused the UN of trying 'to falsely smear our effort'. The Israeli military also issued new evacuation orders on Friday in north-east Khan Younis and urged Palestinians to move west ahead of planned military operations against Hamas in the area. The new evacuation zones pushed Palestinians into increasingly smaller spaces by the coast. – 20 killed Friday while seeking aid Since GHF began distributions in late May, witnesses have said almost daily that Israeli troops open fire on crowds of Palestinians on the roads leading through military-controlled zones to the food centres. Palestinians displaced by the Israeli air and ground offensive on the Gaza Strip stand in an area at a makeshift tent camp at dusk in Khan Younis (Abdel Kareem Hana/AP) Officials at Nasser Hospital in Khan Younis said at least three Palestinians were killed on Friday on their way to GHF sites in the area of Rafah in southern Gaza. The Israeli military has said previously it fires warning shots to control crowds or at Palestinians who approach its troops. On Friday, in reaction to the UN report, it said in a statement that it was investigating reports of people killed and wounded while seeking aid and that it had given instructions to troops in the field based on 'lessons learned' from reviewing the incidents. It said it was working at 'minimising possible friction between the population' and Israeli forces, including by installing fences and placing signs on the routes. Separately, witnesses have said Israeli troops open fire on crowds of Palestinians who gather in military-controlled zones to wait for aid trucks entering Gaza for the UN or other aid organisations not associated with GHF. The crowds are usually made up of people desperate for food who grab supplies off the passing trucks. On Friday, 17 people were killed waiting for trucks in eastern Khan Younis in the Tahliya area, officials at Nasser Hospital said. Three survivors told the AP they had gone to wait for the trucks in a military 'red zone' in Khan Younis and that troops opened fire from a tank and drones. It was a 'crowd of people, may God help them, who want to eat and live,' said Seddiq Abu Farhana, who was shot in the leg, forcing him to drop a bag of flour he had grabbed. 'There was direct firing.' Airstrikes also hit the Muwasi area on the southern end of Gaza's Mediterranean coast, where hundreds of thousands of Palestinians driven from their homes are sheltering in tent camps. Of the 15 people killed in the strikes, eight were women and one was a child, according to the hospital. The sun sets over damaged buildings in the Gaza Strip (Ariel Schalit/AP) Israel's military said it was looking into Friday's reported strikes. – Efforts ongoing to halt the war The recent killings took place as efforts to halt the 21-month war appeared to be moving forward. 'We'll see what happens. We're going to know over the next 24 hours,' US President Donald Trump told reporters on Air Force One late Thursday when asked if Hamas had agreed to the latest framework for a ceasefire. A Palestinian official told AP on Friday that Hamas is still working on its response the proposal presented to it by Egyptian and Qatari mediators. He said the response will be positive but added that Hamas is insisting on guarantees regarding an Israeli withdrawal to positions it held on March 2, during a previous ceasefire, and an end to the war following a 60-day truce as well as ending the GHF system for distributing aid. The official spoke on condition of anonymity because he was not authorised to talk the press. Mr Trump said on Tuesday that Israel had agreed on terms for a 60-day ceasefire in Gaza and urged Hamas to accept the deal before conditions worsen. The Health Ministry in Gaza said the number of Palestinians killed in the territory has passed 57,000. The ministry does not differentiate between civilians and combatants in its count, but says more than half of the dead are women and children. The war began when Hamas-led militants attacked southern Israel, killing 1,200 people and taking roughly 250 hostages.
Glasgow Times
32 minutes ago
- Politics
- Glasgow Times
Palestine Action loses appeal hours before terror ban due to start
Earlier on Friday Huda Ammori, the group's co-founder, unsuccessfully asked the High Court to temporarily block the Government from designating the group as a terrorist organisation, before a potential legal challenge against the decision to proscribe it under the Terrorism Act 2000. The move is due to come into force at midnight after judge Mr Justice Chamberlain refused the bid for a temporary block. Proscribing the group under anti-terror laws would make membership of, or support for, the direct action group a criminal offence punishable by up to 14 years in prison (Lucy North/PA) Lawyers for Ms Ammori took her case to the Court of Appeal on Friday evening, and in a decision given at around 10.30pm, judges refused to grant the temporary block. The Lady Chief Justice Baroness Carr said: 'The judge was entitled to take the view that the harm identified… would be the product of an individual's decision not to comply with the order.' She added that there was 'no real prospect of a successful appeal'. Raza Husain KC, for Ms Ammori, made a bid to have the case certified as a 'point of general public importance' to allow a Supreme Court bid. Baroness Carr, sitting with Lord Justice Lewis and Lord Justice Edis, added: 'You are not going to get to the Supreme Court before midnight.' The judge said that any application should be made before 4pm on Monday and refused a bid to pause the ban coming into effect pending any Supreme Court bid. In his decision refusing the temporary block, High Court Mr Justice Chamberlain said: 'I have concluded that the harm which would ensue if interim relief is refused but the claim later succeeds is insufficient to outweigh the strong public interest in maintaining the order in force.' Blinne Ni Ghralaigh KC, for Ms Ammori, told the Court of Appeal that the judge wrongly decided the balance between the interests of her client and the Home Office when deciding whether to make the temporary block. Protesters outside the Royal Courts of Justice on The Strand, central London (Lucy North/PA) She said: 'The balance of convenience on the evidence before him, in our respectful submission, fell in favour of the claimant having regard to all of the evidence, including the chilling effect on free speech, the fact that people would be criminalised and criminalised as terrorists for engaging in protest that was not violent, for the simple fact that they were associated with Palestine Action.' She also told the Court of Appeal that Mr Justice Chamberlain 'failed properly to consider' that banning the group 'would cause irreparable harm'. Ms Ni Ghralaigh said: 'There was significant evidence before him to demonstrate the chilling effect of the order because it was insufficiently clear.' She continued that the ban would mean 'a vast number of individuals who wished to continue protesting would fall foul of the proscription regime due to its lack of clarity'. Ben Watson KC, for the Home Office, told appeal judges that Mr Justice Chamberlain gave a 'detailed and careful judgment' which was 'all the more impressive given the time constraints'. He added that the judge 'was entitled to reach the conclusion that he did'. The barrister said: 'The judge conducted a very careful analysis of all the matters he relied upon.' Mr Watson also said that the judge was 'alive' to the possible impacts of the ban, including the potential 'chilling effect' on free speech. 'There was no error by the judge in concluding that there was a serious question to be tried while at the same time acknowledging that he couldn't, on the material in front of him, say that it had strong prospects of success,' he added.
Glasgow Times
32 minutes ago
- Entertainment
- Glasgow Times
Nuno Borges says Wimbledon blocked Portugal shirt as tribute to Diogo Jota
Instead he wore a black ribbon pinned to his hat during Friday's third-round match against Karen Khachanov, but said his team had initially pushed for a more visible tribute. 'I know Wimbledon is usually not very flexible with attire,' Borges told the PA news agency. 'But I was told we could still do something to pay our respects for what happened, so I think it was a nice gesture. 'He was a great footballer. It was a tragedy.' Francisco Cabral of Portugal wearing a black ribbon in memory of compatriot Diogo Jota (Mike Egerton/PA) Borges, who lost a five-set thriller, said his agent contacted Wimbledon about the idea of wearing a Portugal shirt, and even tried to source a white version to comply with dress rules, but it was not approved. 'We initially talked about getting a full jersey to walk on court,' he said. 'I even tried to find one in white, but it was turned down, so we ended up doing something a little smaller.' Asked if Wimbledon should have allowed the shirt, he said: 'I think that's what makes Wimbledon special and different from every other Slam, so I really don't know.' Wimbledon relaxed its 148-year-old dress code in light of Jota's death, allowing players to wear black ribbons or armbands. Borges was among several players who did, including fellow Portuguese doubles player Francisco Cabral. Cabral, who wore a ribbon on his shirt sleeve during a doubles match with Lucas Miedler, said: 'Yesterday the idea of wearing a black strap came up – that was not allowed. 'I asked for permission to use the black ribbon and they let me play with it.' He described it as 'an honour', adding: 'It was not for the best reason – he was an inspiration not only for me but for the country in general. 'He made so much in the sport and conquered so much in my life. If I helped 1% for the family I will be super happy.' Cabral and Miedler lost their second-round match in straight sets to Czech pair Petr Nouza and Patrik Rikl. Wimbledon's dress code has long restricted visible colour on court, and tributes are rarely granted. The gesture marked a rare moment of flexibility from organisers, after the deaths of Jota and his brother Andre Silva, who were killed in Spain while travelling to catch a ferry to England. British doubles player and Liverpool fan Neal Skupski had also taken a black armband for his match on Thursday, but opted not to wear it after learning of the death of his grandmother shortly after coming off court. He said he may wear one 'in the next couple of days'.
