Employers must treat their employees fairly under the Employment Standards Act, 2000, (ESA), but they don’t always follow the law. Employees have to treat their employers fairly, too. A fair day’s work for a fair day’s pay is an old cliché, but it is based in truth. Even if there’s no formal written contract, each side has legal obligations to the other. Our team of Newmarket based Shirtliff Hinds Law employment lawyers can be engaged by employers, including small and medium businesses, institutions such as schools and hospitals, and organizations such as Professional Colleges, charities, and more. Our employment lawyers also represent individual employees. Shirtliff Hinds Law Newmarket-based employment lawyers will confidently and efficiently negotiate, mediate, or arbitrate your case. And take the case to court if the need arises.
The Newmarket employment lawyers at Shirtliff Hinds Law can assist individuals or organizations with negotiating hiring packages; reviewing and perhaps modifying employment contracts; coaching employers on obligations and options when negotiating a severance package; coach a departing employee on what the former employers’ obligations are, helping an individual fight discrimination, bullying, and harassment, including sexual harassment and help an organization establish policies and employee handbooks on these topics; negotiate from an employer or employee perspective on non-competition clauses and non-solicitation clauses; and ensure employees get the pregnancy leave or parental leave they are legally entitled to, without opening an employer up to litigation.
When necessary, the employment lawyers at Shirtliff Hinds Law in Newmarket will help our clients litigate cases of alleged wrongful dismissal or alleged unlawful termination.
An interesting area of employment law involves workplace safety: are the rules, equipment, and safety protocols in place, has training been provided, and do employees do what is required of them as well as help protect your safety if your employer has violated health and safety rules in the workplace?
- Severance Packages, Termination Packages Reviews
- Employment Contract Reviews
- Restrictive Covenants: Non-competition, Non-solicitation
- Discrimination and Duty to Accommodate
- Bullying and Harassment
- Pregnancy Leave and Parental Leave in Ontario
- Constructive Dismissal in Ontario
- Wrongful Dismissal and Wrongful Termination in Ontario
- Health and Safety Violations in Ontario
Under Ontario law, “termination pay,” “severance pay,” and “pay in lieu of notice” each have specific legal meanings. These are governed by the Employment Standards Act. From an employee standpoint, if you have been offered either a termination package or a severance package, it is always a good idea to speak with a Newmarket employment lawyer at Shirtliff Hinds Law in York Region, about your rights under Ontario law. Importantly, speak to an employment lawyer before you sign anything, or you may be signing away your legal rights.
If you represent the organization offering the package, getting the offer right in the first place makes everyone’s life easier.
Termination Pay – Under ESA, all employees who have been continuously employed for at least three months with their employer must be provided with written notice of termination or Termination Pay in lieu of that notice. This is called “Statutory Notice of Termination.”
The amount of notice an employee is entitled to depends on their length of service with the employer, ranging from one week of notice (for those employees with three months to less than one year of employment) and maxing out at eight weeks of notice (for those employees with eight years of service or more). This can be provided as either Termination Pay or working notice.
Severance Pay – In addition to “Statutory Notice of Termination” or termination pay, an employer may be required to pay you “severance pay.” You are also entitled to severance pay if you have been with your employer for five years or more and
- The severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
- The employer has a payroll of $2.5 million or more.
The Province of Ontario offers helpful information about severance, qualifying for severance pay, and calculating severance pay.
Notice or pay in lieu of notice – an employer can choose to provide working notice to an employ or terminate the working relationship immediately and provide payment in lieu of notice. Reasonable notice includes an employee’s statutory entitlement to notice, Termination Pay and/or Severance Pay under ESA.
The Newmarket employment lawyers at Shirtliff Hinds Law can help an organization protect its reputation and your legal rights by ensuring that your severance package follows Ontario law, avoiding the need for further legal action against you.
How to Negotiate a Severance Package -- In Ontario, employment is a form of contract: you get a job, with an hourly wage or a salary and certain benefits, while the employer gets the fruit of your labour, so-to-speak. When employers no longer want or need your services, they offer terminated employees a severance package. This, too, is a form of contract: you need to sign-back the severance package in order to get the benefits outlined in the package. Some benefits are dependent on how many years you worked for your employer and employers must comply with statutory minimums.
As with much of contract law, there is an old saying: “You get what you negotiate.” Or, put another way: “If you don’t ask, you don’t get.” It is always a great idea to contact a Newmarket employment lawyer at Shirtliff Hinds Law, to help you negotiate the best severance package possible, given your specific circumstances and especially when you are under stress. We can help terminated employees negotiate a more favourable counter-offer.
The employer and employee should not share a lawyer. The employer terminating the employee, and the employee being terminated, should each have their own lawyer.
The employment lawyers at Shirtliff Hinds Law, based in Newmarket, are experienced in maintaining the rights of either side in an employment matter, and are comfortable working with other lawyers across Ontario.
It may surprise you to learn that every employee in Canada has an employment contract. Most are oral, with implied terms; some are written. As a form of contract law, an employment contract spells out entitlements, obligations and restrictions of both employer and employee.
A well-written employment contract protects both employers and employees from negative impacts in the future. And employment contracts can always be re-negotiated, if both parties agree.
The Newmarket employment lawyers at Shirtliff Hinds Law can help employers review the employment contract you offer, so you understand what to expect from the new employee.
At the pre-hiring stage, customized, negotiated, contracts are becoming more common which our Newmarket employment lawyers can assist in drafting. Some employees are also expected to follow guidelines and procedures as per an employee handbook. The Newmarket Employment lawyers can assist new employees with understanding what each restriction or requirement in the handbook means and what their legal exposure may be.
Employment contracts usually cover:
- Not disclosing the employer’s confidential information by the employee.
- Salary/wages, job title, duties/responsibilities, statutory holidays, vacation, and work location. These are essential terms.
- In the event that the employer terminates the employee, the amount of reasonable notice that the employee is entitled to.
- Restricting the employee’s ability to set up a competing business, or joining a competing company, during or after the employment period, through a non-competition clause (“non-compete”).
- Restricting the employee in soliciting the employer’s staff or clients, either during or after the period of employment, through a non-solicitation clause (“non-solicit”).
Having a Shirtliff Hinds Law employment lawyer review the employment contract you offer as an employer or are asked to sign as an employee is proactive and prudent, to protect your legal rights in Ontario.
Depending on the specific term, Ontario courts may be reluctant to uphold a non-competition or non-solicitation clause. Instead, the courts often rule in favour of an individual's ability to pursue the job of his or her choosing. In addition, the courts are also often sensitive to the ability of Ontarians to earn a living and support themselves and their families. If your employment contract contains a non-competition or a non-solicitation restriction, or clause, it is a good idea to check with a Newmarket employment lawyer at Shirtliff Hinds Law about its validity and your legal options.
An employment contract is only enforceable if both employer and employee receive "consideration," a legal term meaning that both sides "get something" out of the contract. If you signed a non-compete clause at the time you were hired, you received a job for signing it.
On the other hand, if your employer made you sign an employment contract partway through your employment and gave you nothing additional in return, you may have a good case that your employment contract is invalid, due to lack of consideration.
In addition, courts will only uphold post-employment restrictions, like non-compete and non-solicit clauses, if employers can prove these clauses are truly necessary to protect their business interests. If employers can't persuade courts the restrictions are justified to protect their interests, the restrictions will most likely not be upheld.
Lastly, the courts tend to uphold restrictive clauses that are narrowly defined as opposed to more broadly defined. Specifically, restrictive clauses that are limited in their geography (a city or town, not an entire province); non-solicitation clauses should be limited in time(they should be two years or less), non-compete clauses should be limited to six months or less; and prohibited activities should be precise and specific (specifically exclude certain customers or suppliers rather than saying “all”).
Don’t sign away your legal rights without speaking to an employment lawyer at Shirtliff Hinds Law in Newmarket.
Discrimination - The Ontario Human Rights Code is for everyone.It is a provincial law that gives Ontarians equal rights and opportunities without discrimination in areas such as jobs, housing and services. It prohibits employers from overtly discriminating against employees—for hiring, firing, or promotion decisions—on the basis of race, age, religion, or sexual orientation. Discrimination can be more subtle, however, and that is why you may need a Newmarket employment lawyer from Shirtliff Hinds Law to examine the facts and give you proper legal counsel, whether hiring or being hired.
Duty to Accommodate – Employees have the right to be accommodated and employers have a duty to accommodate employees for a variety of reasons. This policy is enshrined in the Canadian Human Rights Act. The duty to accommodate means that sometimes it is necessary to treat someone differently in order to prevent or reduce discrimination. Some examples of workplace accommodation are:
- If you are in a wheelchair and need to ensure that the workplace is accessible
- If you are unable to work on certain days due to religious observances
- If you are physically unable to do certain tasks, such as standing for extended periods or lifting heavy objects/materials
- If you have childcare obligations
- If you are taking care of elderly parents
If you believe you are the victim of discrimination in the workplace, or failure to accommodate in the workplace, speak to a Newmarket employment lawyer at Shirtliff Hinds Law. We can intervene on your behalf, to protect your legal rights under Ontario law. Our Shirtliff Hinds Law employment lawyers can help employers Newmarket employers and York Region avoid problems with discrimination and their duty to accommodate.
Harassment means comments or actions, including sexual harassment, that are unwelcome or should be known to be unwelcome. Employees have the right to be free from humiliating or annoying behaviour that is based on one or more Ontario Human Right Code grounds.
Harassment requires a “course of conduct,” meaning a pattern of behaviour rather than a singular, one-time incident. It doesn’t matter what type of business or employment it is—harassing behaviour of any nature in a workplace is prohibited under the Ontario Human Rights Code.
A recent survey, commissioned by the Human Resources Professionals Association, as reported by The Canadian Press via CP24 News Channel, revealed that sexual harassment is much more prevalent in Ontario workplaces than previously believed. In a survey of the association's members, 17 per cent reported having witnessed an employee being sexually harassed or assaulted at work. However, 24 per cent said management is responsive but recommendations "are not always implemented."
Sexual assault, however, is a criminal offense and belongs to Criminal Law. If you have been sexually assaulted by a co-worker, a boss, or someone else at work, speak to a Criminal Law lawyer at Shirtliff Hinds Law.
Harassment in the workplace is also prohibited under the Occupational Health and Safety Act (1990).
The Ontario Ministry of Labour has good information and tips if you are being harassed at work.
For more information about human rights, visit the Ontario Human Rights Commission’s website.
To file a human rights application, contact the Human Rights Tribunal of Ontario (HRTO).
To set up anti-harassment and anti-bullying policies in your organization, ask Shirtliff Hinds Law Newmarket-based employment law lawyers to work with your human resources professionals.
It is extremely difficult for individual employees to be their own advocates and report such incidents to their employer. When you find yourself the victim of sexual harassment, it is wise to seek the help of an employment lawyer at Shirtliff Hinds Law.
Employers are obligated to investigate harassment complaints, and Shirtliff Hinds Law lawyers are highly qualified to conduct these examinations.
Employment lawyers are trained with the needed skills, so you don’t have to fight sexual harassment alone.
Pregnancy Leave – The Canadian Human Rights Act prohibits discrimination related to pregnancy. Pregnancy-related discrimination is a form of sex discrimination, because only women can become pregnant. Discriminatory practices related to pregnancy such as negative treatment, refusal to hire or promote, termination of employment, or harassment are against the law in Ontario. If you believe you are a victim of pregnancy-related discrimination, contact an employment lawyer at Shirtliff Hinds Law in Newmarket.
We can help employers understand their legal obligation to accommodate pregnancy-related needs unless the accommodation will cause undue hardship. Undue hardship considers factors such as health, safety, and cost. The pregnant employee, the employer, and other parties such as union representatives, must cooperate and compromise to find reasonable and practical solutions.
Pregnancy-related circumstances include: planning or attempting to conceive; childbirth; reasonable recovery time after childbirth, miscarriage, stillbirth or abortion; pregnancy as a surrogate; placing a newborn baby for adoption; post-pregnancy maternity leave; and breastfeeding.
There is more information about pregnancy related discrimination at the Canadian Human Rights Commission.
Parental Leave – Adoptive and non-birth parents (fathers, non-birth mothers) are only eligible for parental leave.
Pregnancy leave is for birth mothers only and provides benefits for a maximum of 9 weeks. Parental leave is for biological fathers and adoptive parents and provides benefits for a maximum of 8 weeks. Birth mothers can apply for both pregnancy and parental leave for a total of 17 weeks.
You do not have to take parental leave immediately following pregnancy leave. You may return to work between your pregnancy and parental leave as long as you complete your parental leave within 36 weeks after your child's birth or hospital discharge.
If you believe you are a creator of or victim of parental leave related discrimination, contact an employment lawyer at Shirtliff Hinds Law in Newmarket. We can solve problems before instances blow up into crises.
Here is more information on EI payments during maternity leave.
Here is more information on Pregnancy and Parental Leave Benefit Program, Ontario.
An employer has the right to make reasonable changes to an employee’s job duties and responsibilities in order to effectively manage its business and adapt to a changing marketplace. Minor changes in an employee’s position do not qualify as constructive dismissal. If an employer makes a substantial change to the terms of an employee’s employment without the employee’s consent, or demonstrates an intention to no longer be bound by the terms of the employment contract, the employee has the option of treating his or her employment as having been terminated, or “constructively dismissed.”
Constructive dismissal is complex under the Employee Standards Act(ESA). If you believe you are being constructively dismissed, contact an employment lawyer at Shirtliff Hinds Law in Newmarket, York Region. These types of cases are very difficult for employees to fight alone.
If you are an employer making changes in management processes and job assignments, you should make sure you are not opening your organization up to lawsuits.
In a nutshell, constructive dismissal is when your employer changes the nature of your work to the degree that you are either unable or unwilling to do the work, that you resign.
To be considered a constructive dismissal, the change to the terms of employment must go to the very heart of the employment contract, such as:
- Significant reduction in compensation, salary, or wages
- Change in reporting relationships
- Requiring that the employee move to another location for work
- Significant change in hours of work
- Relieving the employee from authority, position, or duties
- Demotion or downgrading of the job
- Intolerable working conditions due to bullying and harassment
- Intolerable working conditions due to sexual harassment or discrimination.
Employers found to have constructively dismissed an employee are required to provide that employee with a severance package.
If you believe your position or job has been changed by your employer, and without your consent, then you may have a good case for a constructive dismissal action. Speak to a Newmarket employment lawyer at Shirtliff Hinds to protect your rights in the workplace.
“Fired,” “let go,” “laid off,” “terminated,” and “packaged out” are all ways of describing the loss of your job and, employees can be dismissed at any time. Even though it is traumatic and stressful, it is always wise to consult with a Newmarket employment lawyer to protect your legal rights in the workplace. The employment lawyers at Shirtliff Hinds Law can help ensure that your termination package includes all entitlements your employer should pay you, under Ontario law.
In Ontario, your employer may have “just cause” to terminate your employment if you:
- Disobeyed instructions from your boss, or management
- Neglected your duties on purpose
- Misbehaved on purpose
- Behaved in an immoral or illegal way.
“Just cause” does not include human rights violations of the employee.
If you have not been dismissed with “just cause,” all employees who are terminated have five rights under Ontario law:
- Right to Reasonable Notice of Termination – Employees have a right to be notified in writing before their employment ends. The notice period depends on how long you were with your employer, plus other factors, such as an employee’s ability to find another position, or your advanced age. Sometimes, even if employers comply with minimum requirements, it may not be enough reasonable notice.
- Right to Receive Termination Pay – Sometimes, employees who have been terminated receive a lump sum payment in the place of reasonable notice. This termination pay must be made within 7 days of termination, or by the employee’s next regular payday.
- Protection against Constructive Dismissal - Employees have the right to be protected against constructive dismissal. An employer may change your job without your consent to such a degree that you are forced to quit.
- Right to Enforce the Terms of an Employment Contract – An employment contract cannot override the rights given to you by Ontario law. Even if your employment contract specifies otherwise, you still are entitled to receive notice of termination and receive your owed wages.
- Right to Receive Severance Pay, if Owed - If you work for an employer with a payroll of $2.5 million or more, or an employer that has terminated more than 50 employees in the past 6 months, you may have a statutory right for a severance payment in addition to a termination payment. You must have been employed for 5 years or more; the amount of your severance payment is tied to your years of service.
NOTE: Employees fired for “just cause” do not have the right to severance pay or termination pay.
Whether you work in any of Ontario’s resource sectors, heavy industry, construction, transportation, the manufacturing shop floor, or behind a desk, all employees have health and safety rights at work. The Globe and Mail newspaper published a comprehensive article about employee on-the-job safety on October 29, 2017, titled 'We're not seeing the truth': Inside the hidden dangers of the Canadian workplace. If you believe that you may be a victim of health and safety violations, speak to an employment lawyer at Shirtliff Hinds Law in Newmarket. We can help you with a number of legal remedies ranging from advocating on your behalf with your employer, or sometimes working directly with your employer to fix problems.
In Ontario, the Occupational Health and Safety Act is the major piece of legislation that governs workplace safety. It is important for you to know that this legislation views workplace health and safety as a joint responsibility of employer and employee. Ontario legislation imposes legal responsibilities on employers to take all reasonable steps to keep employees safe at work. The same legislation mandates that employees must follow safety policies and practices established by your employer, to keep you safe in the workplace.
In Ontario, employees have these rights under the Occupational Health and Safety Act:
- Know about dangerous materials or equipment used in your work. Your employer has to give you this information.
- Say “no” to work that is not safe. Refuse to work in conditions until they are safe. You must tell your boss right away. You cannot be suspended, fired, or not get paid for saying “no” to work that is not safe.
Further, all employees in Ontario have these responsibilities under the Occupational Health and Safety Act:
- Work safely. Don't take risks. You might hurt yourself or another employee.
- Tell your boss right away about anything you see that looks unsafe.
- Wear the right safety equipment for the job.
- Talk to your boss first. Your boss needs to know your concerns about health and safety. That will give them a chance to fix the problem before anyone gets hurt.
Health and safety violations in the Ontario workplace can be divided into a number of areas, and sometimes not the obvious ones:
- Work schedules (rotational shift work, long work day)
- Safety (forklifts, ladders, powered hand tools)
- Physical agents (noise, radiation, lasers)
- Psychological issues (violence in the workplace)
- Chemicals and materials (compressed gases, corrosive materials, organic peroxides)
- Diseases, disorders and injuries (farmer's lung, latex allergy, tennis elbow)
- Biological hazards (AIDS, common cold, hepatitis)
- Ergonomics - Human factors (lifting, computer mouse, back belts)
Importantly, workplace health and safety includes an employee’s right to be free from emotional, mental and psychological dangers as well as physical ones. This means that an employee who is the target of workplace bullying, harassment (including sexual harassment) and/or violence has been exposed to an unsafe working environment.
If it is proven in court that your employer failed to provide you with a safe working environment, and you were consequently injured or suffered an illness, you may be entitled to compensation under the Workplace Safety and Insurance Board legislation, in the form of damages (money), or reinstatement of your employment.