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        Employment lawyers restricted to wrongful dismissal litigation
          Employment lawyers restricted to wrongful dismissal litigation

Toronto

Ontario

Canada

 

 

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Labour and Employment Lawyers in Toronto
Labour & Employment Lawyers

Tel: (416) 590-1900
Fax: (416) 590-1600

info@dumarkowitz.com

20th Floor, Madison Centre
4950 Yonge Street
Suite 2000
Toronto, Canada
M2N 6K1


"Work  is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

-- Chief Justice Dickson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 (Supreme Court of Canada),
at page 368.

 

 

Du Markowitz attorneys argue winning Superior Court arguments against..

Incompetence: The underdog case against termination for cause.   

Professionals are people who do jobs well even when they don’t feel like it.  As a professional, there’s nothing more frustrating than getting fired on unfounded allegations of employee incompetence.  But while easy to allege, incompetence is becoming increasingly more difficult for your employer to prove in court, thereby opening the door for streetwise employment lawyers to beat even the harshest allegations of incompetence through defence on the following three grounds.

1)  Is the worker being judged against an objectively reasonable standard of competence?

Standard of performance expected of the worker must be objectively reasonable, taking into account job description, past performance, industry standards, and comparative performance of their peers.  Accordingly, firing an employee for producing only 500 widgets an hour just because some exceptional worker in China can produce 1,000/hour will not qualify as bona fide comparison justifying dismissal for cause.

2) Did the worker substantially fail such reasonable standard of competence?

Courts must ultimately make a factual determination in assessing alleged failure to meet reasonable performance goals.  More specifically, streetwise employment lawyers will remind the court that it is in fact the employer’s onus of proof to demonstrate (a) employee failings, (b) that such failings fall within that particular employee’s job description, and (c) that the employee’s behaviour was in fact damaging to the company’s operation.  Even then, the streetwise employment lawyer can still argue reasonable explanations for unsatisfactory performance such as illness, medication, family problems, and others - especially where the employee has worked many years for this employer with otherwise satisfactory work record.

3) Was the worker given advance warning of their failing to meet reasonable standards of employee competence?  

While the employee may very well have performed incompetently, arrived late to work every day, and inflicted huge performance costs on the company as a whole - the streetwise employment lawyer will nevertheless win his client’s wrongful dismissal lawsuit on grounds of inadequate warning by the company such that the employee was made aware of his job performance shortcomings and provided reasonable opportunity to improve.

And so given proven defences available to hard-working professionals falsely accused of workplace incompetence, courts know how much easier it is for employers to be critical than to be correct, and - upon receiving judgment in your favour - soon your boss will realize it too.

 
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