We regularly advise dentists that a 3 month probation period is the standard. But recently, the Ontario Court of Appeal upheld terminating an employee during a 6 month probation period.
Filed under Blog, Staff · Tagged with 3 month probation, 6 month probation, dental practice, dental practice law lawyers, dental practice lawyers, DMC LLP, employment law, ESA, Jonathan Borrelli, notice, ontario dental law, ontario dental lawyer, probation period, probationary employee, suitability, termination, termination notice
I am pleased to announce that Ontario Dentist magazine will be publishing an article in June which I wrote (alongside our employment law lawyers, Jonathan Borrelli and Ljubica Durlovska) entitled “Selling Your Dental Practice? Beware of Staff Liability!” This is a definite must-read article for any dentist. It covers topics such as:
Like I said above, a definite must-read for any dentist! As usual, that article will be published on this website for FREE here, along with all of our other articles.
In the summer of 2014, the staff at Credit Valley Oral Surgery voted in favour of unionization, becoming the first ever dental practice to become unionized and sending chills down the spines of dentists across Ontario.
Since then, there has been no reported case involving the unionization of staff at dental practices. It remains to be seen if unionization in the dental industry will be a growing trend or a passing fad.
Regardless, the buzz and the fear surrounding the topic of unionization remains, so in this blog I will attempt to answer the question: “What would unionization mean for me?“
A union is the vehicle for collective bargaining between the union (on behalf of employees) and the employer. Unions are regulated by federal and provincial legislation. In Ontario, the relevant legislation is the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “LRA“). Members of a workplace may become part of an already existing union – there are many already existing and established unions in Canada and Ontario that a workplace can join; or they may form their own union by meeting certain standards.
Normally, unions are formed by unsatisfied employees who feel powerless to bargain with their employer. Some of the reasons staff might feel unsatisfied or powerless include unreasonable pay and benefits, lack of management or unreasonable management and inadequate communication between employer and employees.
Theoretically speaking this means that if you, the dentist employer, treat your staff right, provide them with what they are legally entitled to and employ the right management style, there will be no incentive for your staff to unionize. Unfortunately, in practice this may not always be the cure to unionization, especially where it is too-little and too-late.
A unionized workplace may be created when 40% of workers in a particular workplace sign membership cards to join a trade union. Such action leads to the union applying to the Ontario Labour Relations Board (commonly called the “OLRB“) to hold an anonymous vote of the employees. If the majority of the workers who cast a ballot voted for unionization, the union becomes certified by the OLRB and sends notice to the employer of its desire to bargain.
In the case of Listrom Hodgson Kienie Ho Barakat Leung Dentistry Professional Corp. v. UFCW, Local 175, over 50% of the staff voted in favour of unionizing. There, the unit of employees had been described as: “all employees of Listrom Hogdson Kienie Ho Barakat Leung Dentistry Professional Corporation operating as Credit Valley Oral Surgery located in the City of Mississauga, City of Milton, City of Oakville and the City of Burlington, save and except supervisors and persons above the ranks of supervisor, Clinical Coordinator, Administrative Coordinator, General Manager, Controller/finance”.
You, as the employer, may express your opinion about unionization but you may not interfere with the unionization process. Threatening employees with the loss of their job if the union is successful, promising them higher wages or better benefits if the union is unsuccessful or any other attempts at unduly influencing the unionization process is considered “interference”. Where employer interference is suspected, the OLRB may order another vote.
The LRA also prohibits employers from supporting a union (section 15, LRA) or being involved in the union (section 70, LRA). This is because involvement in the union by the employer could be tantamount to gaining control over the bargaining process – essentially it is a conflict of interest which is not permitted.
You will also be required to cooperate in the unionization process by posting copies of the Notice to Employees of Application for Certification and the copy of the application in conspicuous places around the workplace. You will also be required to do follow up postings of voter eligibility, vote details and OLRB meetings and hearings. This ensures all employees are aware of the certification process and allows them to participate in the proceedings, if they wish.
If you believe that the overwhelming majority of your employees are for union representation, you have the option of voluntarily recognizing the union, which means that you are foregoing the vote for certification held by the OLRB (Section 16, LRA). Once voluntary recognition is made, there’s no turning back.
If the union has been certified, you are obligated to meet with the union within 15 days of their notice for a meeting, unless mutually agreed to some other time period (Section 17, LRA).
During union / employer negotiations, also known as “collective bargaining” what is being negotiated is a “collective agreement”. A collective agreement is a written contract of employment covering all the employees represented by the union which includes provisions governing the employees’ terms and conditions of employment as well as the duties, rights and privileges of the union, the employer and the employees.
Both you and the union must bargain “in good faith”. This means being forthcoming, honest and making a bona fide effort to negotiate the collective agreement. Some issues that may be seen as “bad faith” bargaining include:
Failure to negotiate in good faith could result in an application with the OLRB, and if the LRB determines that the negotiations have not been undertaken in good faith, it can make whatever orders it deems necessary to ensure good faith negotiations.
In the case where you and the union legitimately cannot agree on the terms of a collective agreement, either party can ask the Minister to appoint a mediator (Section 19, LRA) a conciliation officer (Section 18, LRA) or a conciliation board (Section 21, LRA) to help in reaching an agreement.
The employees may legally strike and you may legally lock them out only after the conciliation provisions of the LRA have been exhausted. Additionally, in order for a strike to be legal more than 50% of the employees must have voted “yes” in a strike vote. A strike or a lock-out normally ends when a collective agreement has been reached. Illegal strikes or lockouts can be remedied by an application to the OLRB.
In the event that a collective agreement is still not attained, either party can apply to the OLRB for a direction that the agreement be settled by arbitration (which is a form of negotiation that ends in a binding agreement entered by the arbitrator).
Once a collective agreement has been reached, the LRA imposes certain prohibitions on an employer’s conduct. The following actions may be considered unfair labour practices:
In some instances, unfair labour practices may lead to criminal or quasi-criminal proceedings against the employer.
According to Section 69(2) of the LRA any successor employer (i.e. anyone you sell your dental practice to) will be bound by the collective agreement you have reached with the union.
Some sneaky employers have tried surreptitiously selling their businesses prior to certification of a union in order to thwart any effort on the part of the employees to become unionized. However, successor employers are also bound to negotiate a collective agreement once given notice of certification.
If you own more than one dental practice and each practice is operating under a different corporate name, you cannot shield each practice’s employees form being exposed to unionization efforts or becoming unionized. Under Section 1(4) and (5) of the LRA an application can be made to the OLRB to classify another person or entity a “related employer”. This allows related or associated employers or corporations to be treated as one employer for the purposes of the LRA.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact me (Ljubica Durlovska), David Mayzel or Michael Carabash. We are your legal dental team.
Dentist employers think that they can fire someone right away for wrongdoing. Yes they certain can try. But it’s not always so straightforward. And if you get it wrong, you’ll be sued for wrongful termination and for failing to provide reasonable notice!
Case in point, let’s look at the recent Ontario Superior Court decision in Partridge v. Botony Dental Corp.,  O.J. No. 226. Part of that case involved a corporation that owned and operated a dental practice terminating a hygienist / office manager for “Just Cause”. Note: the corporation was owned by a hygienist, but which was not a professional corporation – which is another interesting matter to examine later on! The employee sued for wrongful dismissal, claiming that there was NO JUST CAUSE to terminate her.
Just Cause Termination: The Law
Now…onto “Just Cause” Termination. The idea here is that if an employee is doing something really bad, the employer can terminate them immediately and without providing them with any notice or payment in lieu of notice. In other words, the employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship.
“Just Cause” was defined in the Partridge case as follows at paragraph 23:
The usual definition of just cause is as follows: “…misconduct inconsistent with the fulfilment of the express or implied conditions of service will justify dismissal”. Although there is no airtight evidence of what constitutes cause for discharge, the definition relied on most is:
If an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties or prejudicial to the employer’s business, or if he has been guilty of wilful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.
Each case must be determined on its own to determine if the employee’s conduct justifies immediate dismissal. And it’s the employer who has to prove this (the Court has to be at least 51% convinced) in order to be successful. Failing to prove that the termination was for “cause” is a significant punishment to the employee, who would otherwise have received notice (either under the Employment Standards Act, 2000 or at common law or based on the provisions of a private agreement). Finally, the alleged misconduct must be weighed against the employee’s historical performance such that it must OVERSHADOW years, loyalty and efforts devoted by the employee to the employer. Finally, if the employer’s interests or reputation are seriously prejudiced by the employee’s conduct, or where the conduct reveals such an untrustworthy employee that the employer cannot continue to put them in a position of trust, then just cause termination may be warranted.
Examples of Just Cause Termination
Here are some examples of just cause termination:
Sometimes, it’s not only until after an employee is terminated that their dishonest conduct is discovered.
3 Part Test
To determine if dismissal is justified, there’s a three part test: (1) the nature and extent of the misconduct must be examined, (2) the surrounding circumstances must be examined, and (3) a determination must be made as to whether dismissal is a proportional response.
Application in Patridge v. Botony Dental Corporation
After reviewing the jurisprudence concerning the law of just cause termination, the court examined a number of allegations made by Botony Dental Corporation to warrant their just-cause termination of Lee Partridge. This included:
For each of these allegations, the Court was NOT satisfied with the evidence. The Court mentioned from the onset that it believed Lee Partridge’s evidence and testimony more than everyone else’s. The Court also noted that, at a dental practice, “professionalism from staff was essential, and particularly the need for patient confidentiality”. Indeed, on various occasions, Botony Dental Corp.’s principal had congratulated and positively reinforced Partridge’s work. In this context the Court found (with respect to the specific allegations above):
IN SUMMARY: the termination was unwarranted and Lee Partridge was entitled to seek damages for wrongful termination. She ultimately received (among other awards) $42,517.44 as damages (which coincided with a 12 month notice period she should have received had she been terminated properly, i.e. with notice).
MORAL OF THE STORY: as a dentist employer, you need to be careful when terminating someone for “just cause”. Sometimes, to avoid a costly and lengthy law suit in case you get it wrong, it would have made more sense to simply provide them with notice!
In the next blog, I’ll discuss what constituted reasonable notice in this case (i.e. the amount of time and equivalent money that Partridge was entitled to for being terminated unjustly).
Note: the information above is for educational purposes only and is not legal advice. If you need legal advice, contact our employment law lawyer Ljubica Durlovska, my law partner David Mayzel, or me.
My guess is that, on average, we have at least 20 different online accounts. At a minimum, this includes e-mail, social networking (e.g. Facebook, Twitter, LinkedIn, Youtube, MySpace, Flickr), entertainment (e.g. iTunes, Second Life, World of Warcraft) and online bank and trading accounts. But if you also run a business, you probably have other online accounts that could have significant financial value – such as those related to a website or blog, Google Adsense, affiliate programs (e.g. Clickbank), PayPal, or eBay.
But when it comes to death, not many people think about or outline plans concerning their online accounts and assets. In a survey of 1,006 Canadians 45 and older “among the 36 per cent of those who have included their online properties in their estate plans, nearly two thirds have failed to provide any specific instructions about what should happen to the accounts in the event of death” (BMO Retirement Institute: April 2012).
So what happens to these accounts and assets when you die?
Ideally, you should have expressed your final wishes concerning these online accounts and assets before you died. You can certainly gift online assets which have significant financial value and which you both own and are legally capable of transferring in your Will. But you should not be including usernames and passwords in your Will given that those things may change and an update to your Will would require you to have a legal document called a “Codicil” (which you may not bother doing every time you change your password because of the inconvenience and potential financial cost of preparing and executing a Codicil). On top of that, you may not want to disclose usernames and passwords in Wills and Codicils because they may become public documents after your death.
Rather, you should identify your online accounts and assets (a digital inventory of sorts) and include usernames and passwords in a private memorandum that is placed alongside your Will. You can update this memorandum without having to go through any legal formalities and without the risk of it becoming a public document. Both your Will and this memorandum should be placed in a fireproof box, or in a safety deposit box at the bank, or at a lawyer’s office (again, in a safe place); the person you’ve named as being responsible for taking care of your estate when you die should know where these documents are and have access to them.
Failing to leave behind this vital information could inadvertently lead to some online accounts being terminated for inactivity, while online assets could be frozen or potentially disappear altogether (leaving your beneficiaries empty-handed)! It can also cause a lot of anguish to loved ones, as they scramble to remove or transfer your digital footprint; in these regards, they may need to turn to a forensic computer expert or the court in order to make any progress.
Now, let’s take a look at how some of these online accounts and assets are / can be dealt with upon death. You may be surprised to know that not all online accounts and assets are capable of being legally transferred when you die.
You may not rent, lease, lend, sell, transfer, redistribute, or sublicense the Licensed Application and, if you sell your Mac Computer or iOS Device to a third party, you must remove the Licensed Application from the Mac Computer or iOS Device before doing so.
Rumours circulated earlier this year by the U.K.’s Daily Mail that Bruce Willis was considering suing Apply to clarify who owns content downloaded from iTunes. According to that rumour, Willis wanted to leave his large iTunes collection to his daughters. While this story was denied by Willis’ wife on Twitter, it still brought light to the issue of whether you can transfer your iTunes account when you die.
Amazon Kindle eBooks
Online Gaming Characters
Paid Advertising Accounts
Google Adsense, Kontera, Infolinks, Amazon Associates Program and eBay Partner Network are examples of programs that pay website owners to display online ads. These programs can generate thousands of dollars of money every month for these owners. Even posting YouTube videos can earn big bucks. According to Mashable.com, for example, the family behind the viral amateur video “Charlie bit my finger – again” (YouTube’s most viewed amateur video), reportedly earned over $500,000 since that video was posted in 2007.
Google’s Adsense Terms and Conditions say that you cannot transfer your rights under the agreement and that any attempt may result in termination of that agreement; those Terms and Conditions also go on to say that Google Adsense payments are made only to the account holder and may not be transferred or in any manner passed on to a third party unless expressly authorized in writing by Google. Basically, when you die, if you transfer your website and domain account info to your beneficiaries in a Will, they should be able to set up their own paid advertising accounts to earn what you were previously earning.
Passing on your e-mail account information is important for a number of reasons. First, other online accounts are generally linked to an e-mail account. If the executor of your Will (i.e. the person responsible for administering your estate when you die) and your beneficiaries can access your e-mail, they will be able to review, maintain, backup, transfer, or delete your online accounts. They may also gain access to important documents and conversations; this is particularly important for business-owners who have ongoing relationships with customers, suppliers, partners, employees and other key stakeholders. To prevent against the loss of business goodwill, passing along e-mail account information as quickly as possible is of utmost importance.
It’s interesting to note that while the content of e-mails belongs to you, internet service providers may not be forthcoming in providing access to that account to your Executor or beneficiaries when you die.
For example, Yahoo!’s Terms of Service say that, when you die, your Yahoo! account will be deleted:
No Right of Survivorship and Non-Transferability. You agree that your Yahoo! account is non-transferable and any rights to your Yahoo! I.D. or Content within your account terminate upon your death. Upon receipt of a copy of a death certificate, your account may be terminated and all Content permanently deleted.
But in 2005, Yahoo! was ordered by a Michigan Court to release e-mails of deceased U.S. Marine Justin Ellsworth to his father, John Ellsworth. Yahoo! ended up giving the family a CD containing more than 10,000 pages of materials!
Microsoft and Gmail
Unlike Yahoo!, Microsoft and Gmail are pretty accommodating when it comes to providing others with access to your e-mail accounts after you die.
Microsoft will send the contents of a Hotmail/MSN account (including contacts and emails) on a data DVD after receiving certain documentation from authorized representatives (e.g. your Executor or beneficiaries). Among other things, the person requesting access will be required to provide personal information, a copy of the death certificate, and details concerning the deceased’s account. After receiving this information Microsoft will verify this information and then send a DVD with the deceased’s account information.
Gmail accounts can be shut down upon request by the Executors and close family members. Gmail may also give certain authorized representatives access to the contents of your Gmail account in certain “rare” cases and only after they have met some somewhat stringent tests (e.g. which includes providing personal information and identification to Gmail, a copy of the death certificate, and an order from a U.S. court).
To avoid these headaches, it may be a good idea to make regular (e.g. monthly, weekly, etc.) backups of your sent and received e-mails. I do this with Microsoft Outlook. With proper instructions (again, in a private memorandum that accompanies your Will), a somewhat tech savvy Executor or beneficiaries could locate and import or otherwise access those backups. If you have a private business email account (i.e. a non hotmail, Yahoo!, G-mail, etc. account), you could leave instructions on how to access the webmail server and your emails (where hopefully they’ve been stored all along).
Remember: if you don’t plan ahead and your e-mail account remains inactive after you die, it may be terminated and the content deleted. For example, Gmail may terminate your account if it remains inactive for nine (9) months.
It’s estimated that about 580,000 Facebook users will die in 2012 in the United States alone (2.89 million will die internationally).
Facebook’s Terms and Conditions say: “You will not transfer your account (including any Page or application you administer) to anyone without first getting our written permission”. This essentially rules out the ability to transfer your Facebook profile and other content when you die.
That said, Facebook’s policy is to “memorialize” your profile when told of death. When an account is memorialized, Facebook sets privacy so that only confirmed friends can see the profile or locate it in search. Facebook tries to protect the deceased’s privacy by removing sensitive information such as contact information and status updates. Memorializing an account also prevents anyone from logging into it in the future, while still enabling friends and family to leave posts on the profile Wall in remembrance. Alternatively, Facebook can delete the profile upon request verified by family members (examples of documentation to be provided include: birth certificate, death certificate, certificate from the court establishing that the person making the request is the Executor of the estate, etc.).
Twitter says that when you sign up it “gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software”, which again means that an account cannot be transferred. Twitter also states that they are “are unable to provide login information for the account to anyone regardless of his or her relationship to the deceased”.
While the idea of transferring and keeping active a personal Twitter account active seems odd (why would anyone log into your personal account after death and keep tweeting updates?), you would probably want to transfer a business-related twitter account upon your death – particularly if that account had accumulated a large following. But if the Twitter account is left inactive, it may eventually be deactivated. Twitter also has a policy that allows certain authorized persons to inform Twitter of your death to deactivate the account. It seems unlikely it would pursue an individual for logging into a relative’s account after their death, but there are inactivity rules. Your account will not stay around forever if nothing is happening with it.
LinkedIn has a simple “Verification of Death” form which can be completed and submitted to LinkedIn to close a deceased’s LinkedIn account. The form can be submitted online or via fax. Among other things, the person submitting the form will need to know the deceased account holder’s most recent place of employment. It’s a pretty simple form that does not require a death certificate for processing.
You may be using GoDaddy to host a business-related website or blog (which generally includes having a registered domain name and subscribing to website hosting services). Before your domain name or subscription services expire, GoDaddy will send renewal reminders to you via e-mail. If you haven’t left instructions on how to access and deal with your GoDaddy account in your private memorandum and if your e-mail account is inaccessible or de-activated after you die, then your website or blog could go offline for good. This could be disastrous if your website makes money and contains vital intellectual property and client information. Once your domain expires, it could be registered by anyone for a few dollars.
PayPal allows an Executor to close a deceased’s account. The Executor will be required to fax a cover page that states that the account holder is dead and that the Executor wishes to close the PayPal account. Supporting documentation – such as a copy of the death certificate, Will or legal documentation that provides the information regarding the Executor, and a copy of a photo identification of the Executor – must also be submitted to PayPal. Once the account is closed, if there are any funds in the PayPal account, the Executor will receive a cheque issued in the account holder’s name.
As there are no set rules governing how various internet service providers death with your online account and assets upon death, it’s imperative that you be proactive in itemizing and providing instructions on how to access these via a private memorandum that is kept alongside your Will. If you simply want some of your accounts to be left untouched and shut down, you should provide these instructions in your Will or private memorandum. Interestingly, a recent study by webhosting company Rackspace (in association with the University of London) revealed that 11 per cent of Britons had either left passwords to their digital treasures in their Will or were at least planning to do so.
While some of your online accounts may have sentimental value that you want your loved ones to have, other online assets may have real financial value. Case in point, in 2011 the total value of online assets in Britain was estimated at 2.3-billion pounds, while in the U.S. it was $2.9-billion.
To help organize your online accounts and assets, you might want to consider using an online storage facility. A quick look on the Internet revealed a number of service providers (predominantly in the US and the UK) such as Legacy Locker, Asset Lock, Cirrus Digital Legacy Services, Entrustet, I-Tomb, and My Digital Executor which offer to securely store your usernames and passwords for your online accounts and also facilitate digital estate planning, posthumous e-mails, and online memorials.
About the Will-O-Matic for Dentists
So now that you’re a little bit more educated, you are probably thinking: how can I organize my online (and offline) accounts and assets in a clear and comprehensive way? Well, if you use our Will-O-Matic Wizard for Dentists on www.Dentist Legal Forms.com, you can create a Will or dual Wills (if you have a professional corporation) and YOU also get a downloadable “Personal Information, Assets and Liabilities” checklist that allows you, among other things, to identify your online accounts and assets in an organized fashion.
David Mayzel is your legal risk manager. He is a trained courtroom lawyer and has spent many years resolving disputes both in and out of court. He knows how to prepare documents and execute transactions in a way that avoids or mitigates legal risks. He can be reached at 416.528.5280. or email@example.com.
Michael Carabash is your business law adviser. He is an entrepreneur at heart who helps you see the big legal picture. He drafts clear and effective agreements that protect your rights while promoting your interests. He can be reached at 647.680.9530. or firstname.lastname@example.org.
Ljubica Durlovska is your transition lawyer. She helps you with staff and associates, maintaining your corporation, and other business matters. She can be reached at 416.443.9280, extension 206 or email@example.com.
Jonathan Borrelli is your employment lawyer. He helps you with staff and associates matters, including hirings, terminations, switching staff to written contracts and resolving disputes. He can be reached at 416.443.9280, extension 204 or firstname.lastname@example.org.
Benjamin Kong is an experienced business law clerk. He assists David and Michael with corporate matters and purchase / sale transactions. He can be reached at 416.443.9280, extension 207 or email@example.com.
Julie Whitehouse is an experienced business law clerk. She assists David and Michael with corporate matters and purchase / sale transactions. She can be reached at 416.443.9280, extension 203 or firstname.lastname@example.org.
David, Michael, Ljubica, Jonathan, Ben and Julie are a truly dynamic team. Their diverse knowledge, skills, and experiences will help you get the best deal possible while promoting your interests and protecting your rights. You can read dentist testimonials here.