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employment law

Freedom of speech doesn't mean freedom from consequences, as former L.A. Clippers team owner Donald Sterling discovered last year.Mark J. Terrill/The Associated Press

In ways more bad than good, 2014 was a pivotal year in employment law, for both employers and employees. Whether through ignorance of the law, indifference or just poor advice, several huge blunders put workplace legal disputes squarely in the public spotlight in Canada and the United States. Many of these cases will have legal implications for the workplace in 2015 and beyond.

1. Free speech fallout

Freedom of speech does not mean freedom from workplace consequences. Canadians are given the right to say and write what they please, whether privately or in public, and most do just that without fear that their thoughts, and their prejudices, may follow them back to their desk.

But now more than ever, what you say, write and do can be recorded and captured even without your consent, and it can have far-reaching implications for both your job and your career. This is exactly what happened to former Los Angeles Clippers owner Donald Sterling when a girlfriend secretly recorded his biased comments that were later released to the news media. Mr. Sterling's personal views were considered so detrimental to the National Basketball Association's brand that he was forced to sell the team.

While serious consequences could apply to any employee who embarrasses his or her employer, it hardly means that private and personal expressions are always on trial. In fact, most of what you say outside work will be irrelevant to your employer and off limits from discipline. But in exceptional cases where your personal views publicly degrade your employer's brand and reputation, you can be immediately fired without severance.

2. Behaviour unbecoming

Similarly, behaviour outside of work that has a negative impact on your employer can also be cause for dismissal. This is nothing new or even newsworthy, except that the close proximity of the public oustings of Donald Sterling, former Baltimore Ravens football player Ray Rice and former CBC radio host Jian Ghomeshi for conduct outside of the workplace made for huge headlines last year.

Canadians should now be acutely aware that the workplace no longer has traditional boundaries defining when work begins and when it ends, and that if they are arrested, charged, sued, or put in the public spotlight for any reason incompatible with their employers' best interests, those employers can quickly distance themselves from the relationship, often without legal consequences.

3. Probing allegations

In the wake of the Ghomeshi scandal and allegations of harassment against two Liberal MPs that occupied headlines for much of the year, the law of workplace investigations was also widely dissected, but for two entirely different reasons.

In the case of Mr. Ghomeshi, the CBC initially failed to properly investigate allegations of workplace discrimination and harassment when it first learned there were complaints. This is contrary to human rights legislation and could lead to legal liability against the CBC and damages in favour of any employee, contractor, volunteer or intern who was threatened and or harassed.

Conversely, in the case of the two MPs accused of harassment, the Liberal Party moved rapidly to suspend them once the accusations surfaced, but without explaining the reasons for their suspension or providing them with any opportunity to fight the case against them.

If the federal Parliament were a typical workplace (and in many ways, it is), the two MPs sent home could successfully sue for wrongful dismissal. Employees accused of misconduct have a right to know the case against them and are entitled to defend themselves against those allegations before an employer takes action that could affect their job or career.

Just as failing to investigate an employee's allegations can lead to an employer's liability, so too can denying the accused's right to due process in the context of that same investigation.

4. Boomers beware

Employees who retire are not entitled to severance, no matter how long or meritorious their service. As Canada's baby boomers move a step further toward retirement age, many are hopeful they will be offered a severance package, be laid off or otherwise paid to disappear. But not so fast. An Ontario court ruled that an older and long-term employee who expressed an intention to retire when he turned 65 was not entitled to severance after he was laid off because he had no intention of returning to work. This could be a potentially dangerous precedent for any older employee who says they "would not mind getting a package" or that they are thinking of "winding down."

5. Honesty the best policy

Not least, in November the Supreme Court of Canada's decision in a case called Bhasin v. Hrynew, will have far-reaching implications for Canadian workplaces after the Court imposed a duty requiring employers and employees (including contractors) to always deal with each other honestly and good faith.

Until now, it was not illegal for an employer to lie about reasons for dismissal (that is, calling it restructuring when there was another more nefarious reason) and there was little an employee could do if the reasons for a demotion, or another's promotion, for example, were based on bias and not merit.

Now, the workplace as we may know it may have been turned on its head as employers will be subject to a new class of litigation from employees who feel they have been deceived.

Daniel A. Lublin is a partner at Whitten & Lublin, representing both employers and employees in workplace legal disputes. E-mail:

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