Michael Fitzgibbon has a good article summarizing a recent case in which the court made some very clear comments on various aspects of damage awards for wrongful dismissal on his Thoughts from a Management Lawyer blog. Its a worthwhile read.

Even though I’ve used the common term “wrongful dismissal” - the court points out that there is no such thing.   Either employer or employee can end their arrangement at any time for any reason.  The real issue is how much notice must be given. 

I guess we will have to come up with a new term to replace “wrongful dismissal” – how about “insufficient termination notice”.

For the London Free Press – August 23, 2010

Read this on Canoe

Best Buy employee nearly fired for online video poking fun at iPhone consumers

The amusing (though sprinkled with colourful language) iPhone 4 vs. HTC EVO video on YouTube almost cost the creator — a Best Buy employee — his job.

The video portrays an electronics store employee trying to convince a person wanting an iPhone 4 to buy an HTC EVO 4G instead. The video has had about seven million views.

The video was made by Brian Maupin, a 25-year-old from Kansas City, Mo. For the past 3 1/2 years he worked at Best Buy selling mobile phones, something he may decide never to do again. This comes after he was suspended from work and faced threats of being fired.

Maupin explained Best Buy “felt it disparaged a brand they carried (iPhone/Apple) as well as the store itself and were fearful of stockholders and customers being turned off to Best Buy Mobile.”

But if you watch the video, you will see there isn’t any mention of Best Buy at all. The cartoon employee identifies the store as “Phone Mart.” The characters are not wearing anything that resembles the Best Buy uniform and are standing in an outdoor field with a pink tree.

Best Buy recently announced they will not fire Maupin.

“We have completed our investigation into the videos created and posted by Brian Maupin, the aspiring film-maker and Best Buy employee. This is an important situation for us because it involved balancing our social media guidelines with a commitment to creating a supportive environment for our employees. It’s important to note that our investigation involved three videos that were posted in late June because they were openly disparaging of our employees, our customers and our vendor partners. . . . Contrary to rumours, Brian has not been fired, and is scheduled to return to his job.”

But Maupin has chosen to take a leave of absence and is thinking about kick starting his graphic design career.

“I’m not planning on returning to work — immediately, anyway. Honestly, I don’t know how I could return considering some of the things that were said to me and not have a lot of awkwardness on the job. I’m looking at possible jobs in graphic art — nothing definite yet, but I’m searching.”

Maupin has taken a stab at the situation in his most recent video, “TweetFired”.

In TweetFired, a pants salesman at fictitious “Stacks o’ Slacks” gets a stern talking to by his boss because of the tweets he posts on his Twitter account — tweets that have absolutely nothing to do with his job. His boss has apparently been stalking him on social media, and accuses him of “painting a very negative picture of working here in 140 characters or less.”

Internet tools and social media increasingly blur how one’s personal and work life overlap. Employers struggle with the extent to which they may be prejudiced by those actions, whether they should just ignore it, and what legal rights they have over actions employees consider personal.

The Calgary Herald reports that a woman was recently fired from her job by a message sent to her via Facebook.  She had only been at the job for 2 weeks.  So is “cyber sacking” the way of the future, or just a cruel/lazy way to terminate someone?

The Washington Post has an article that says 9 employees were fired, and many more sent warnings and reprimands. They had clicked on the sites thousands of times per year.

There was a policy in place that prohibited such conduct.

There are definite advantages to having technology use policies in place. It lets employees know what is acceptable and unacceptable use. And if employees cross the line, it makes it much easier to do something about it.

Read the Washington Post article

For the London Free Press – October 8th 2007

Read this on Canoe

Courts seem to be scrutinizing non-solicitation clauses of former employees more closely. Businesses would be wise to take a look at their existing non-solicitation provisions to take this into account.

A non-solicitation clause prevents employees from soliciting customers of their former employer to sell them a competitor’s goods or services.

Conventional legal wisdom was that non-solicitation clauses were easier to enforce than non-competition clauses (which state a former employee can’t work for a competitor). Non-competition clauses must be narrow in scope to be enforced. Recent case law says non-solicitation clauses in employment contracts also will be looked at to ensure they do not go beyond legitimate business protection.

Courts want to ensure the restrictions within the clauses do not overly limit the employee’s ability to find new employment, while still providing protection for proprietary rights of the former employer. The kind of restrictions or limitations the courts used to accept as necessary to protect the integrity of the business are narrowing.

When a court considers non-solicitation clauses, it will not correct deficiencies in the wording. If it is found to be restrictive in one particular aspect, they will deem the entire section to be inoperable.

Two recent decisions of the Ontario Superior Court and the Ontario Court of Appeal indicate that employers are held to a high standard of reasonableness when restricting the future earning potential of former employees.

Often geographical restrictions are too broad. The courts prefer limitations on solicitation of those who that particular employee specifically dealt with or knew of, rather than on all current and prospective clients of the business.

This was the case in a decision called IT/NET Inc versus Cameron, in which a sub-contractor signed a non-solicitation agreement which prevented him from soliciting clients not only at his job site, but in other locations within the company. The clause would have applied whether the contractor knew his target was an IT/Net client or not, and it had no spatial limit, so would apply anywhere in Canada.

The court found it was unreasonable to require such a covenant between the two parties, and that IT/Net did not require that kind of protection.

In Trapeze Software Inc. versus Bryans, the court considered the grounds on which a covenant has to be reasonable.

They include: that the employer actually had a proprietary interest to be protected, that the limitations on geographic work zones, or the duration of the covenant was not too broad to impede the ability of the employee to gain new employment, and that it is not against competition generally.

This means it is permissible to restrict contact between customers and former employees, but it may be necessary to limit that to customers the employee dealt with or was aware of.

These two cases are not a dramatic change, but clarify what has been known for many years; that any restrictive clauses in employment contracts must be reasonable.

Reasonableness is hard to define, but these cases tell us that so long as the former employee is not completely blocked from the industry, and not completely prevented from gainful employment, and so long as the employer has something legitimate to protect, like client lists, or trade secrets, the covenants will stand up to the court’s scrutiny.