Workplace Solutions for Workplace Disputes

Employment Law

 

Employment relationship is a living organism that needs to be carefully nurtured by skillful management. The manner in which employment can be initiated, governed, modified, suspended or terminated is of legal importance to both employers and employees, albeit from different legal perspectives.

We offer a broad range of employment law services designed to assist: employers to effectively manage their workplace relations; and employees to enforce or protect their legal rights.

Some of our employment law services include:

Advice before Dismissal

Strategic legal advice before a termination is triggered or occurred may save thousands in damages for corporate employers and gain thousands for dismissed employees.

In hindsight, there are always obvious “signs” that one’s job is in jeopardy. Such “signs” typically include:

(a) sudden findings of fault with your performance;

(b) you begin to receive verbal and written warnings;

(c) superiors avoid you;

(d) you are not copied on memos/emails you normally received; and

(e) “small talks” with peers are less frequent.

Often, employees ignore such “signs” until it is too late and an employer already built the case for just cause dismissal (see section “dismissals (wrongful)” to learn more about “just cause” concept).

Corporate employers that either opportunistically assert just cause or “low-ball” employees at termination are rolling a dice that may produce significant legal and financial consequences.

The guidance of experienced employment counsel in matters involving or leading to dismissals is indispensable for ensuring that costly mistakes are avoided.

Actions for Wrongful Dismissal

An action for wrongful dismissal is based on an implied or express obligation in an employment contract to give “notice” of an intention to terminate the relationship in the absence of just cause. If an employer has terminated the employment contract without notice, the employer is required to pay damages in lieu of notice. Notice is – the information that the employment will end on a certain date. Contrary to the popular, albeit mistaken belief, the purpose of notice is not to pay “severance”, but to give employees a chance to arrange their affairs and try to find new, comparable employment. The question of “reasonable  notice” is more complex.

We would be pleased to meet with you to discuss your workplace situation and provide you with a balancd advice tailored to your unique circumstances.

Attendance Management

Employees are expected to perform work in exchange for pay. The employee absenteeism has a direct impact on the level of service the employer provides. High levels of absenteeism impacts on quality of service, lost productivity and reduced morale of co-workers. While, in some instances, employees are able to justify their absences, consistent management of attendance problems can have highly positive effects on the workplace.

We would be pleased to help you to develop, or review your existing, attendance management policies.

Constructive Dismissal

Constructive dismissal occurs whenever an employer unilaterally makes a change to a substantial term or condition of employment, which is unacceptable to an employee. Examples of these major changes have been held to include:

(a) significant reduction in salary (i.e. more than 15%);

(b) providing inadequate notice regarding a substantial change;

(c) demotion;

(d) the breach of the promise of a promotion;

(e) changes in responsibilities with or without change in compensation;

(f) filling the employee’s position with another person;

(g) abusive treatment of the employee;

(h) unsubstantiated allegations of performance deficiencies;

(i) placing an employee on probation;

(j) placing an employee on lay off; and

(k) a gradual diminution of responsibilities over a period of time.

The determination of whether an employee suffered a constructive dismissal is legally complex. It requires a careful balancing of many legal principles and facts. Corporate employers that either opportunistically or recklessly make unilateral changes to their employees’ contracts may expose themselves to significant legal consequences and economic losses. Employees that “leap” into the conclusion that their employers’ actions caused them to suffer constructive dismissal, do so at their economic peril.

We would be pleased to meet with you to discuss your workplace situation and provide you with a balanced advice tailored to your unique circumstances.

Dependent Contractor vs. Employee

Where a person is not carrying on business for himself, exclusively works for a company and at least some degree of supervision and control by the contracting party has been established in the relationship, that relationship may be found to fall under the intermediate employment class of a “dependent contractor”.

The fact that a dependent contractor owns his tools, carries on business through a corporation, performs the work as self-employed or, even, employs others to do the work will not defeat the employment status if the common law employment law tests can be met. A person found to be a dependent contractor may be entitled to severance.

With an advent of the “dependent contractor” class, the courts embraced a broader notion of the employment relationship. The determination of whether the employee is a dependent contractor is legally complex. It requires a painstaking analysis of relevant legal principles and facts by experience employment counsel.

We would be pleased to meet with you to discuss your workplace situation and provide you with a balanced advice tailored to your unique circumstances.

Dismissals (wrongful)

Wrongful dismissal is a termination of employment without an advance notice of termination or payment in lieu of notice. There are two, most common, types of wrongful dismissals:

  1. with “justifiable cause” (e.g. theft, dishonesty, incompetence, insolence, lateness etc.), which disentitles an employee from receiving any compensation at termination; and
  2. “without cause”, where employers are obligated to provide dismissed employees with an advance notice of termination or payment in lieu of it;
  3. but see also sections “Constructive Dismissals” above and “Unjust Dismissal” (the latter applies to federally regulated employees only).

Corporate employers are often faced with a question: “how to cost-effectively dismiss an employee?” The answer requires employers to thoughtfully balance various of their obligations to, and rights of, employees. Because there is no set formula for calculating an employee’s entitlement at termination, prudent employers should seek professional advice.

Dismissed employees often seek, albeit unsuccessfully, an answer to a question: “why was I fired?” At law, employers are not obligated to provide employees with reasons for their dismissal. But employers are required to treat dismissed employees fairly. Typically, employers’ fairness is demonstrated by a severance package they offer. Since the concept of “fairness” is fluid, dismissed employees should neither accept severance packages offered nor sign a Release, without consulting an employment counsel about their rights and obligations at a termination. Individuals who neglect to do so, may do so at their economic peril.

As legal counsel specializing in all aspects of employment law, we will be pleased to meet with you in order to assess your unique set of circumstances and provide you with a strategic advice design to meet your needs.

Discipline & Just Cause Dismissal

A dismissal for cause is a matter of substance not form! Progressive discipline is a necessary part of virtually every termination for just cause. It requires employers to document each individual act of misconduct and apply corrective action to the employee, before accessing the ultimate sanction of termination for just cause. When imposing discipline, employers must act in a reasonable and non-discriminatory manner. A formal and publicized policy on progressive discipline can assist both employers and employees.

Corporate employers wishing to avoid unnecessary and costly litigation are invited to contact us in order to discuss the proper course of action before the decision to discipline or terminate an employee has been made. We would also be pleased to review or develop the progressive discipline policy.

Employees faced with incrementally more serious warnings and other disciplinary actions are invited to contact us in order to obtain strategic advice on how to avoid just cause dismissal and, perhaps, salvage the employment relationship.

Duty to Mitigate Losses

Duty to mitigate derives from the general proposition, rooted in contract law, that a dismissed employee cannot recover damages for reasonably avoidable economic loss. Almost every dismissed employee is obligated to reduce the damages payable by taking reasonable steps to secure comparable employment. The onus rests upon employers to prove not only the dismissed employee’s failure to take steps to mitigate, but also that had the employee taken reasonable steps, he would likely have obtained comparable employment.

There are many vexing questions associated with the duty to mitigate, for example:

  1. whether the dismissed employee is entitled to use the reasonable notice period to seek a position commensurate with his level of experience and skills or whether he is obligated to accept a lower-paying position to reduce their economic loss?

  2. how does the employee’s new and higher-paying employment, secured through mitigation, affect damages the former employer must pay?

  3. is it reasonable for the employee to mitigate constructive dismissal by accepting employment in a demoted position with no immediate change in compensation?

  4. is there duty to mitigate in fixed-term contracts? or

  5. how does the existence of the restrictive covenant in the employment contract impacts on the dismissed employee’s duty to mitigate?

The proper monitoring of the employee’s discharge of his duty to mitigate may save corporate employers thousands in damages. Equally, dismissed employees may be able to use the duty to mitigate to their advantage. In both instances the parties should seek legal advice from experienced employment counsel.

As legal counsel specializing in all aspects of employment law, we will be pleased to meet with you in order to assess your unique set of circumstances and provide you with a balanced, objective and strategic advice design to meet your needs.

Employment Contracts

Employment contract have many characteristics that set them apart from ordinary commercial contracts. They rarely result from an exercise of free bargaining power. As such, the importance of a written contract of employment cannot be understated. Not only does it spell out the terms and conditions of the employment relationship, but it also set out the parties’ expectations in the event of a termination. However, even the most comprehensive and sophisticated employment contracts might not be enforceable unless they are consistent with minimum employment standards as well as properly implemented in the employment relationship. The enforceability of a written contract of employment depends upon many factors.

A well-drafted employment contract by an experinced employment lawyer may serve to either increase an employee’s entitlements at the time of dismissal or limit an employer’s liability to a set amount of compensation (or notice) that will be provided in the event of a without cause dismissal.

We would be pleased to help you to draft, or review your existing, employment contracts.

Employment Standards

An employment standard is an employer’s obligation for the benefit of an employee provided for in the Employment Standards Act, 2000Employers cannot contract out of the following guaranteed minimum employment standards:

– overtime pay;

– hours of work and eating periods;

– public holidays;

– vacation pay and vacation time;

– pregnancy and parental leave;

– family medical leave;

– emergency leave;

– temporary lay-offs and recalls;

– termination and severance pays; and

– benefits.

A business closure or sale triggers the application of further employment standards. In certain instances, directors of may be held personally liable for unpaid wages and statutory penalties. These minimum standards must be observed and followed at all times. Failure to do so can have significant legal and financial ramifications for employers.

We would be pleased to meet with you to discuss your workplace needs and provide you with a balanced, objective and strategic advice tailored to your unique circumstances.

Independent Contractor vs. Employee

Whether a person is an independent contractor or an employee is an issue to be determined based on the facts of each case, having specific regard to the degree of the employer’s control over the contractor. If the employer exercised enough control, the contractor could be considered to be an employee, and therefore, entitled to severance.

The fact that parties have agreed, in writing, that the individual in question is to be designated an “independent contractor” rather than an “employee”, is not determinative of the issue. Courts will look beyond mere words and artificial structures, such as, for example, a person providing services through the corporation or files tax returns as a self-employed,  in order to determine the true employment relationship.

The lines of distinction between independent contractor, dependent contractor and employee not easy to draw. We would be pleased to meet with you to discuss your workplace situation and provide you with a balanced, objective and strategic assessment of your case  based on your unique circumstances.

Immigration Law Implications to Workplace

There are important peripheral issues to business immigration, quite separate from those pertaining to gaining admission to Canada. Corporate employers who bring foreign employees to Canada, may substantially reduce potential litigation and ensuing losses, if they seek advice from experienced employment & immigration counsel in order to address statutory and common law employment issues, before the employee begins working in Canada. The following, is a general overview of a few key considerations, that are often overlooked by corporate employers:

  1. Recruitment – Recruitment of skilled foreign employees is often carried out with the assistance of recruiters or headhunters. Recruiters’ overstatements about the virtues of a job in Canada, may give rise to a cause of action against an employer, based on negligent representations and/or inducements made to a foreign national by the recruiter;
  2. Engagement – When offering employment, employers will want to ensure that an offer of employment is contingent upon the employee’s ability to obtain a work permit, to renew the permit and to continue to work in Canada legally. For senior management employees or professionals, particularly leaving secure employment in their home country, additional protections may be required.
  3. Employment Contract – The employment contract can be drafted to include termination provisions, limiting the employer’s liability to a set amount of compensation or notice, which will be provided in the event of a “without cause” termination; or spell out consequences, be it repayment of relocation costs, travel expenses or immigration costs, in the event of the employee’s early: (a) repatriation to his country; (b) resignation; or (c) dismissal.
  4. Relocation Policiescorporate employers that frequently employ foreign nationals, especially from NAFTA countries, should ensure that they have relocation policies in place.
  5. Mitigationshould a foreign employee sue an employer for wrongful dismissal, he will be subject to the duty to mitigate (see “duty to mitigate” section above) their damages. Corporate employers relocating employees to Canada must have employment law strategies and appropriate mechanisms in place, in order to effectively deal with issues surrounding the foreign national’s claims based on the inability to mitigate his damages.

Corporate employers should be mindful that given the recognized power imbalance between an employer and employee, our courts are reluctant to deny employees, both foreign and domestic, access to the statutory and common law benefits available after dismissal.

For additional information, please review; (a) sections “Intra-company Transferees, Business Visitors, Investors & Professionals (NAFTA)” and “Intra-company Transferees, Business Visitors & Professionals (GATS)” on Immigration Law page.

Inducement, Enticement or Poaching of Employees

Inducement occurs when a rival persuades a competitor’s employee to leave previous gainful and reasonably secure employment, but thereafter breaches the employment contract by dismissing the employee shortly after the “new” employment commenced. Inducement is an integral component of damages in an action for wrongful dismissal, which may lengthen the induced employee’s reasonable notice period upon termination. The rationale for this is that the employee would not have left a secure job if there had not been an implied agreement of reasonable job security with the new employer.

Not all inducements will carry equal weight when determining the appropriate period of notice and that the significance of the inducement in question will vary with the circumstances of the particular case. Curiously, an employee can be found to have been induced to join a new employer even if the employee made the initial approach.

The jurisprudence in assessing the relevance of inducement as a factor is unsettled. Employees who are being “targeted” by competitors and corporate employers that “target” their rivals’ key employees should seek legal advice from experienced employment law counsel before making or accepting employment offers. To learn more about the concept of inducement or damages for intentional interference, please refer to Mr. Chsherbinin’s book The Law of Inducement in Canadian Employment Law (Carswell, 2012).

Lay-Offs

Right of a company to “layoff” non-union employee is one of the areas of greatest misapprehension shared by many Human Resource professionals. Oftentimes, employers use the word “layoff” as simply a synonym for termination, having no intention whatsoever of recalling the employee when business conditions improve. In the traditional view, unless an employment contract provides otherwise, an employee cannot be laid off. If there is no such contractual entitlement, a lay off is a constructive dismissal allowing an employee to immediately commence a wrongful dismissal lawsuit.

As legal counsel specializing in all aspects of employment law, we will be pleased to meet with you in order to assess your unique set of circumstances and provide you with a balanced, objective and strategic advice tailored to your unique circumstances.

Privacy in the Workplace

The law of workplace privacy is still in its infancy. Nowadays most employers permit employees some personal use of computers and smartphones. There is the growing recognition of employee privacy expectations associated with the personal use of employer’s computer systems and smartphones. However, employees’ expectation of privacy is not absolute.

Employers must be aware of their rights, obligations and restrictions when it comes to the privacy in the workplace. Seemingly simple questions, such as: “can the employer ‘use the video surveillance?’ or ‘rely on the information it obtained from the search of employee’s workplace computer, email or social networks?’ in order to make employment related decisions?” may give rise to significant legal and financial complications. A recent case in point, is the October 19, 2012 decision of the Supreme Court of Canada, R. v. Cole, which confirmed that a person has a reasonable expectation of privacy in his personal computer, even if it is owned by his or her employer.

Corporate employers can limit their employees’ expectation of privacy through the introduction and consistent enforcement of a clear “technology use” and “social media use” policies. Such policies are especially important if the employer permits reasonable personal use of its computer systems and handheld devices by its employees.

We would be pleased to discuss the privacy implications to your organization and help develop, or review your existing, technology use policies.

Restrictive Covenants (non-solicitation/non-competition)

Restrictive covenants take on greater strategic importance as labour mobility increases and are frequently found in employment contracts. Through such contractual provisions, employers attempt to restrict departing employees from competing, soliciting or using confidential information in their subsequent employment. Judges, however, have always looked skeptically at restrictive covenants, correlating them with presumptively invalid restraints of trade, rooted in the employer/employee inequality.

Corporate employers must be mindful that employees may successfully challenge in restrictive covenants (be it non-solicitation, non- competition etc.) if they are too widely worded, do not have a termination date, vast in their geographical or temporal scope, vague about the type of business activities that are prohibited or were introduced without any consideration. If the employer overreaches a covenant’s scope, inevitably, its goal will be frustrated and may produce costly legal consequences.

The determination of whether the restrictive covenant is enforceable is legally complex. We would be pleased to help you to draft, or review your existing, restrictive covenants to ensure they are enforceable.

Sale, Restructuring and Closure of a Business

The effect of a takeover, acquisition, purchase or sale of all or part of a business on existing contracts of employment will depend, to a large extent, upon the manner in which the transaction is structured. There are a number of legal principles established by the Ontario and other Canadian courts, which lay down both the rules and the exceptions to the rules in this area. To further complicate matters, the Employment Standards Act, 2000, contains certain provisions relating to continuity of service which conflict, to some extent at least, with the general legal principles set out by the courts on this subject.

Employees are, to a great extent, not in a position to have any impact on the corporate decisions, which either lead to or shape the sale of a business. Employees are, however, fundamentally affected by such transactions. Perhaps the most that an employee can do in such circumstances is to react to the sale of the employer in an informed way to ensure that the employer does maintain as much protection as possible. Understanding one’s right to continued employment with the purchaser of a business on similar terms is an essential starting point.

Corporate employers contemplating a business purchase must be aware that they are stepping into the shoes of the vendor, for purposes of statutory termination liability, with respect to every employee whose employment is continued subsequent to closing.

It is important to seek legal advice on one’s particular circumstances, since each situation is unique. As legal counsel specializing in all aspects of employment law, we will be pleased to meet with you in order to assess your unique set of circumstances and provide you with a balanced, objective and strategic advice tailored to meet your needs.

Statutory Compliance

Workplace law constantly evolves. We closely monitor the legislative developments in this area, assisting employers in auditing their information management practices and developing policies and procedures in compliance with statutory obligations.

We will be pleased to meet with you in order to assess your organization’s compliance with applicable statutes and regulations.

Severance Packages (review & development)

Employment is a game and wrongful dismissal is a gamble. Often, employers roll the dice by opportunistically offering just the statutory minimums to dismissed employees, instead of what they might otherwise be entitled to at the common law. It is essential for the dismissed employee to have the offered severance package reviewed by an employment lawyer, who will be able to determine whether he or she is being treated fairly. In our experience, most employers present an initial severance package that can be improved to the dismissed employee’s advantage.

With in-depth knowledge in this area, we would be pleased to assist:

  • corporate employers to develop a strategy, and draft all relevant documents, on how to properly and cost-effectively dismiss an employee; and
  • employees with a comprehensive review of their severance packages and negotiate their further improvement.

Unjust Dismissal (federally regulated employees)

The Canada Labour Code Part III (“Code”) allows non-unionized, non-managerial employees who have completed 12 continuous months of employment with federally regulated employers to seek redress where they have been dismissed without just cause, a situation called “unjust dismissal.” The Code does not define the term “dismissal”. However, the courts have interpreted this term to mean “termination of employment by act of the employer without the voluntary and informed consent of the employee.” It is the employee’s responsibility to prove that they were dismissed in this way. If they cannot do so, the adjudicator will not have the power to hear the complaint.

The Code sets standards for determining what is “just cause” that are more in line with modern industrial relations practice than with outdated common law standards. The Code also permits the Minister of Labour to appoint an adjudicator to determine, according to those standards, whether or not an employee has been dismissed for just cause. The Code makes reinstatement rather than monetary compensation the primary remedy for unjustly dismissed employees. It does, however, also authorize adjudicators to order various other awards including back pay and damages that are not limited to those that would otherwise be payable according to an employee’s contract. It is important to keep in mind that the unjust dismissal provisions of the Code do not abolish the civil remedies that are otherwise available to employees at common law. These remain available to unjustly dismissed employees apart from the Code. 

As legal counsel specializing in all aspects of employment law, we will be pleased to meet with you in order to assess your unique set of circumstances and provide you with a balanced, objective and strategic advice tailored to your unique circumstances.

Workplace Policies (review & development)

Policies serve to inform, reinforce and clarify standard operating procedure in the workplace. Well written policies assist employers to effectively manage their workplace by defining acceptable and unacceptable behaviour in the workplace and setting out implications of employees’ non-compliance.

We would be pleased to assist corporate employers in reviewing, evaluating, developing and re-designing the following employment policies:

  1. code of conduct;
  2. recruitment;
  3. performance management;
  4. use of internet and email;
  5. use of hand-held devices;
  6. use of social media;
  7. drug and alcohol;
  8. health & safety;
  9. workplace privacy;
  10. anti-discrimination and harassment;
  11. sexual harassment;
  12. accident and incident reporting;
  13. internal investigation; and among others
  14. discipline and termination;

An employee’s failure to comply with a policy that formed an integral part of his or her employment contract may be relied on, at the time of termination, by an employer. However, the terms of the policy might not be enforceable unless they are consistent with minimum employment standards and were properly implemented in the employment relationship.

Workplace Conflicts & Politics

While conflicts and disagreements in the workplace are inevitable, they are often preventable and manageable, but require proactive, practical and cost-effective solutions. Internal politics, indifference, personal insecurities, apathy or irritability are all facets of the mounting conflict. Often, workplace politics is the main reason why talented employees lose their jobs.

As with any conflict situation, there are two sides to every workplace controversy. Early intervention to diffuse the behaviours before the employment relationship is irreparably damaged requires employees to take proactive steps, designed to either salvage the relationship or position themselves in such a way as to be able to influence, to the extent possible, the outcome of the conflict.

We are often called upon to act as “ghost-counsel”, working from behind the scene, for employees who are faced with the workplace controversy. Early involvement of experienced employment counsel could allow you to either repair your suffering relationship or to create, or improve, facts that can be effectively relied upon during the course of the wrongful dismissal litigation.

We would be pleased to meet with you to discuss your workplace dilemmas and provide you with workable workplace solutions. Sometime the experienced employment counsel’s answer to seemingly rhetorical question: “what do you make of my workplace situation?” works wonders.

Employees should not be “penny wise and pound foolish” and seek legal advice whenever they are faced with workplace controversies, as they may have significant impact on their familial and/or professional relations.

Wrongful Hiring / Misrepresentation

An employee who leaves previous employment because of misrepresentations can allege wrongful hiring and sue for damages. Employers competing for top talent must be aware that overly optimistic pitches to job candidate will cross the line if a statement is made, which is known to be untrue or misleading, or a material fact is omitted, where the job candidate relies on the statement.

We would be pleased to meet with you to discuss your unique circumstances, provide you with a balanced assessment of your situation and develop strategies to achieve your objectives.