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Employment & Labour Law

TORONTO EMPLOYMENT & LABOUR LAWYERS

At Rousseau Mazzuca LLP, we assist both employees and employers. We regularly walk our clients through workplace disputes and understand the interests and unique concerns of each party involved.

We provide legal guidance at all stages of an employment relationship: from pre-hiring contract negotiations, to problems during employment, to termination and/or resignations.

Our extensive experience in employment law allows us to be very effective in getting results, while being efficient in time and costs. We listen carefully to what our clients need, then find a practical way to get them there.

FOR EMPLOYEES:

Bad Faith and Mental Distress Damages

The law expects employers to treat employees in “good faith”, which means treating them honestly and fairly. Employers are always supposed to act this way, but the expectation is especially important when it comes to termination of employees. Where an employer acts in bad faith, employees can sometimes receive additional financial compensation.

Some examples of bad faith by an employer include:

  • Falsely accusing an employee of misconduct, such as fraud
  • Firing an employee, then pretending the employee resigned
  • Firing an employee on disability, pregnancy, or other leave
  • Lying about the reason for termination
  • Firing an employee to avoid paying pension

The experienced, strategic, and knowledgeable employment lawyers at Rousseau Mazzuca LLP routinely guide employees following a termination. Our goal is to help our clients understand their options, maximizing their severance package, and protecting their interests while avoiding prolonged legal disputes. We have many years of focused experienced assisting clients in numerous industries and sectors.

WHAT IS BAD FAITH?

Under the law, employers are obligated to treat employees in “good faith”- treating them fairly and honestly at all times during the employment relationship. This is particularly important during the beginning of an employment relationship (recruitment) and end of an employment relationship (termination).

Bad faith actions by an employer cause employees stress, and can result in depression, anxiety, and other illnesses. The employer’s actions may also damage the employee’s reputation and prospects for finding another job. Where the employer’s improper behaviour has caused an employee to suffer, the employee can sometimes receive financial compensation.

Employers also must be honest with a prospective employee in the recruitment process. Sometimes an employer is dishonest about the job and resources available. Relying on the employer’s false claims, the employee may quit another job or pass up another opportunity to take the position. Employees can also receive compensation in these situations.

Constructive Dismissal Issues

Constructive dismissal occurs when an employee leaves a job because the employer’s conduct makes it difficult or impossible to stay. A constructive dismissal can be caused either by a change to the job or by mistreatment. When employees are constructively dismissed, they are entitled to the same compensation they would be entitled to in a normal termination or wrongful dismissal. This usually means notice or pay in lieu of notice.

At Rousseau Mazzuca LLP our knowledgeable employment lawyers provide exceptional legal advice and representation for constructive dismissal issues. We can assist you in ensuring your rights are protected. We are empathetic and compassionate, but will assertively fight for you when necessary.

WHAT IS CONSTRUCTIVE DISMISSAL?

Not every change in your job will be considered a constructive dismissal. The change must be fundamental to the terms of employment. A significant demotion is a fundamental change. A major change to the employee’s responsibilities, compensation, or location of work can also be a fundamental change.

Mistreatment, such as bullying, sexual harassment, or racial discrimination can also result in constructive dismissal. The mistreatment might be one serious incident, or a series of smaller incidents that have a cumulative effect.

Sometimes, the employer’s aim in making changes or mistreating the employee is to push him or her to quit. Constructive dismissal does not require this intent by the employer though. The key is whether a reasonable person would leave under the circumstances.

In order to claim constructive dismissal, the employee must take some action. If the employee does nothing, he or she is considered to have accepted the change or the mistreatment. It is important to take action, or at least to object, quickly.

Disability, Illness & Medical Leave

Taking an extended period off work due to illness, injury, or disability can be incredibly stressful and emotional. Employees worry about job security, whether they are going to be fired, and how they will make an income while they are away from work. However, it is important to know that your employer must accommodate your condition and cannot take action against you because of it. In addition, there are a number of options available to you to ensure your financial well-being.

At Rousseau Mazzuca LLP in Toronto, our knowledgeable employment lawyers provide exceptional legal advice and help you to understand and navigate all of your options when you are sick, injured, or disabled.  We can assist you in ensuring your rights are protected. We are empathetic and compassionate, but will assertively fight for you when necessary. Our goal is to empower our clients by helping them to fully understand their legal rights. We can assist with common questions such as:

  • Do I need a doctor’s note?
  • How much information about my illness, injury, disability, or condition do I need to share with my employer?
  • Can my employer contact my doctor directly to ask questions about me?
  • What if my employer does not believe that I am sick or injured?
  • Can I get fired for asking for an extended leave?
  • How much time can I take off?
  • What if my benefits plan does not have short or long term disability benefits or if I don’t have a benefits plan?
  • Once I am ready to return, what does my employer need to do to help me transition back to work?

ACCOMMODATION

Legally, your employer has the duty to accommodate your illness, injury, or disability to the point of “undue hardship”. This means that an employer cannot fire you as long as you can do the core duties of your job, or another available job. This is a hard test to meet.

If you are terminated while you are on leave, or injured, ill, or disabled, you have a number of options available, including filing a human rights complaint or suing. If your employer is not accommodating you, or has terminated you, you should contact a lawyer as soon as possible to discuss possibilities for moving forward and ensuring your rights and interests are protected.

MEDICAL LEAVE

Ontario’s Employment Standards Act provides employees with a number of unpaid, job-protected leaves, including personal emergency leave, which is an unpaid, job-protected leave of up to 10 days each year to be used in the case of personal illness, injury, or medical emergency.

In addition to this, your employment contract, collective agreement, or benefit plan may provide for additional sickness leaves or other leaves of absence, including short term and long term disability leaves.  Above and beyond these protections, employers also need to accommodate disability-related absences as part of their obligations under human rights laws.

Trusted Legal Advice for Discipline and Warning Letters

Receiving a discipline letter and/or a warning at work is stressful, especially if you feel that the discipline or warning is unwarranted or unfair. While any kind of warning from your employer should be taken seriously, it is important to know that receiving one does not always mean that your employment is immediately threatened.  However, it does mean you should seriously assess the situation.

At Rousseau Mazzuca LLP in Toronto, our experienced and knowledgeable employment lawyers can help guide you through the uncertainty of receiving a warning or letter of discipline from your employer. We want to empower our clients by helping them understand all of their options, and ensure they are well-positioned to move forward.

DISCIPLINE AND WARNING LETTERS

Discipline letters or letters of warning are often given to employees as a formal indication of a performance problem. Such letters will generally repeat a warning or warnings that have previously been given, and identify the employer’s concerns, areas that must be improved, and consequences for failure to do so.

Discipline letters can be the first step in a progressive discipline process that can eventually lead to a performance improvement plan (PIP) or other next steps.

Receiving a written warning or letter of discipline often raises red flags and questions for employees, including:

  • Is my employer gathering evidence to fire me?
  • Why am I the only employee who received a warning?
  • What if I don’t agree with what is in the letter?
  • Do I have to sign it?
  • Can I fight the letter?
  • How do I protect myself?

If you have been given a warning about your performance, in writing or otherwise, or you have been given a discipline letter, it is important to consult with an employment lawyer right away, and certainly before you sign anything. The experienced lawyers at Rousseau Mazzuca LLP will clearly outline the potential risks, explain what you can expect going forward, and will help you protect your rights.

Assisting Employees with Employment Contracts

Many employees work without a written employment contract. Increasingly however, employers present new (or existing) employees with formal contract documents. Some written agreements merely set out an agreed salary and start date, and reflect what has already been discussed. Often, however, the employer uses a written contract to try to slip in terms to reduce the employee’s rights.

At Rousseau Mazzuca LLP in Toronto, our knowledgeable and experienced employment lawyers have reviewed hundreds of employment contracts for employees in a wide variety of industries and sectors. We can assess your employment agreement, identify and explain any potential risks that may exist, and ensure your rights are protected.

RED FLAGS IN EMPLOYMENT CONTRACTS

Employers often attempt to include or introduce a termination clause into an agreement without any prior discussion or agreement with an employee. This can have a significant impact on the employee’s rights, and can reduce their severance or notice of termination by a noteworthy amount. For instance, a long-serving employee may be entitled to 2 years of notice of termination but a termination clause could reduce that notice period to just 8 weeks, a difference of 90%.

Other common clauses that often appear in written contracts without any prior discussion with the employee include:

  • Relocation clauses allowing the employer to modify an employees’ place of work (including moving them to another province/territory or out of country)
  • Non-competition clauses preventing employees from working for another company in the same industry
  • Non-solicitation clauses preventing employees from maintaining contact with suppliers or clients
  • Discretionary bonus clauses, removing an employees’ right to a promised or expected bonus

If an employer asks you to sign a written contract, it is critical to meet with an employment lawyer to make sure you understand all of the contract’s implications. Some contract provisions may not even be lawful or valid. Other provisions may undermine your rights and leave you vulnerable. Employers are often willing to change contract terms. An experienced employment lawyer can help you understand what is reasonable and how to negotiate for it.

Human Rights

In Ontario, it is against the law for an employer to discriminate against an employee or candidate based on their personal characteristics, such as gender, sexual orientation, ethnic origin, or similar.

The employment lawyers at Rousseau Mazzuca LLP in Toronto provide unparalleled legal representation in human rights claims. We have many years of experience advising employees in various industries during human rights disputes. Our priority is to guide clients through the human rights system while assertively protecting their rights.

HUMAN RIGHTS IN THE WORKPLACE

Canada’s human rights laws provide that every employee (or job applicant) has a right to equal treatment in employment without discrimination based on any of the following characteristics:

  • Race
  • Ancestry
  • Place of origin
  • Colour
  • Ethnic origin
  • Citizenship
  • Creed
  • Sex (including pregnancy)
  • Sexual orientation
  • Gender identity
  • Gender expression
  • Age
  • Record of offences
  • Marital status
  • Family status
  • Disability

For most employees, these protections are contained in the Ontario Human Rights Code.  The Canadian Human Rights Act provides similar protections to employees working in federally regulated businesses, such as banks, airlines, and telecommunications.

An employee’s human rights could be violated by an employer policy, such as a requirement that all employees retire at age 65. Employers could also take action against a specific employee, motivated in whole or in part by discrimination, for example – firing an employee who is 67 because she is “too old”.

In many cases, the employer does not actually say anything discriminatory. That is not, however, the end of the story. Discrimination can also be concluded based on the surrounding circumstances. For example, firing an employee shortly after she announces she is pregnant could lead to a conclusion that the firing was discriminatory.

An employee whose human rights have been violated is entitled to compensation both for economic losses (such as lost wages) and for any mental suffering or injury to the employee’s dignity.

Independent Contractor vs. Employee

There has been an increasing movement towards companies relying on contractors instead of hiring employees in the traditional sense. Often employers are under the impression that they can save money and avoid certain legal obligations by hiring contractors instead of long-term employees. Workers are often engaged under a series of short term contracts, or are asked to sign agreements that classify them as “independent contractors” and claim to limit their rights. However, employment relationships are governed by more than just the contract or agreement between a worker and a company. Many individuals who have been labelled as contractors are actually employees and are entitled to all of the rights and benefits that employees enjoy.

At Rousseau Mazzuca LLP in Toronto, we can help you understand your relationship with your company and assist you in getting the benefits you may be entitled to. We will provide knowledgeable advice and will assertively represent your interests if necessary.

THE DIFFERENCE BETWEEN  INDEPENDENT CONTRACTORS AND EMPLOYEES

It is common for employers to deliberately classify workers as “independent contractors” in an attempt to save money and enjoy tax benefits and lesser legal obligations. However, more often than not, those workers are actually employees, entitled to all of the rights and benefits that come with being an employee, and will be considered employees if there is a legal dispute. Employers cannot avoid their obligations by simply labelling someone a “contractor” or “independent contractor”. If there is a dispute, courts will look at the day-to-day reality of the working relationship in order to determine whether the worker is a contractor or an employee.

DETERMINING WHETHER AN INDIVIDUAL IS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR: A TEST

It is common for employers to deliberately classify workers as “independent contractors” in an attempt to save money and enjoy tax benefits and lesser legal obligations. However, mo

A court will review many factors in order to determine the nature of a workplace relationship, including:

  • Control
  • Ownership of Tools
  • Chance of Profits
  • Risk of Loss

Control

The court will ask whether the worker controls the place and manner in which their work is performed? Do they set their own hours? Working arrangements where a worker has a lot of flexibility over how and when their work is performed suggests an independent contractor relationship.

Ownership of Tools

The court will ask whether a worker controls his or her tools, supplies, work space, or equipment. A working arrangement in which a company provides highly specialized or expensive equipment points towards an employment relationship. On the other hand, a situation where a worker supplies their own equipment suggests a contractor relationship.

Chance of Profits

The court will review the worker’s earning potential. A worker who is paid an hourly rate, limiting their opportunity to increase their earnings, is more likely to be considered an employee. A worker who is paid on a piecework basis, meaning that greater efficiency may increase their profits, is more likely to be considered an independent contractor.

Risk of Loss

A court will assess a worker’s risk of loss. A worker is more likely to be considered an independent contractor if, for instance, they are at risk for losing money where work is not done correctly or efficiently.

re often than not, those workers are actually employees, entitled to all of the rights and benefits that come with being an employee, and will be considered employees if there is a legal dispute. Employers cannot avoid their obligations by simply labelling someone a “contractor” or “independent contractor”. If there is a dispute, courts will look at the day-to-day reality of the working relationship in order to determine whether the worker is a contractor or an employee.

Non-Solicitation & Non-Competition Agreements

Often, employers may try to restrict employees’ activities not only during their employment, but also after they leave. There are many types of restrictions, including restrictions on the use of confidential information, restrictions on hiring employees away from the employer, and restrictions on using suppliers.

Usually, the restrictions are contained in a written document: most commonly non-solicitation agreements and non-competition agreements, or “non-competes”.

The employment lawyers at Rousseau Mazzuca LLP have drafted, reviewed, interpreted, challenged, and defended hundreds of non-solicitation and non-competition clauses in various industries. We understand the nuances of these clauses, and can help employees protect their interest.

NON-SOLICITATION AGREEMENTS

A non-solicitation agreement restricts a departing employee from approaching clients of their former employer, and/or seeking their business. These agreements are often more easily enforceable than non-competes, as long as they are clear and reasonable

NON-COMPETITION AGREEMENTS

non-competition agreement goes much further than a non-competition agreement, and prohibits the employee from even working elsewhere in the same industry for a period of time, whether on their own, or for a competitor.

Non-competition agreements are more difficult to enforce than non-solicitation agreements. An employer who wants to enforce a non-compete must convince a court that a non-compete is absolutely necessary in order to protect their interests.

Assisting with Overtime Claims in Toronto and throughout Ontario

Overtime pay is mandatory for most employees in Ontario, including full-time employees, part-time employees, casual employees, or students (with some exceptions).  Overtime applies whether you are paid on an hourly basis or have a salary.

For qualified employees, overtime starts once that employee works a certain number of hours per week (this will differ depending on whether your workplace is governed by the federal Canada Labour Code or the provincial Employment Standards Act).  At that point, the employee starts making 1.5 times their regular pay (commonly referred to as “time and a half”).

Common questions that arise include:

  • Can I be forced to work overtime?
  • Am I eligible for overtime pay?
  • What is the daily maximum of hours I can work?
  • How can I claim overtime pay?
  • Can I receive time off instead of overtime pay?
  • I only realized now that I am eligible for overtime pay, can I claim back pay for unpaid overtime?
  • Can I bank my overtime pay?

At Rousseau Mazzuca LLP, our experienced employment lawyers can determine whether you qualify for overtime and will ensure that you are paid any outstanding amounts you have not received.  We provide our clients with the confidence and peace of mind to stand up for their rights. We have helped many individuals, as well as groups of individuals, get the money they are owed by their employers.

At Rousseau Mazzuca LLP in Toronto, we can help you understand your relationship with your company and assist you in getting the benefits you may be entitled to. We will provide knowledgeable advice and will assertively represent your interests if necessary.

EXCEPTIONS FOR OVERTIME PAY

The majority of employees are eligible for overtime, including students, part time employees, casual employees, and full time employees. It does not matter whether you are paid hourly or are on a salary. However, there are a number of exceptions. The most common of these exemptions are managers/supervisors, travelling salespeople, and IT professionals. Each category has detailed rules and requirements though.  Merely adding the word “manager” to a job title, for example, is not enough.

Parental Leave & Pregnancy Discrimination

In Canada, discriminating against a woman who is pregnant, was pregnant, or is attempting to become pregnant is prohibited. Similarly, parents should not be at a disadvantage because they choose to care for their children or address issues related to parenthood. If an employer has subjected a pregnant employee, an employee who is planning to get pregnant, or an employee who has lost a child to differential treatment, that employee has a number of legal options available to them.

At Rousseau Mazzuca LLP our knowledgeable employment lawyers provide exceptional legal advice and representation for parental leave and pregnancy discrimination claims. We can assist you in ensuring your rights are protected as you plan or grow your family, or deal with the aftermath of loss. We are empathetic and compassionate, but will assertively fight for you whenever necessary.

Our goal is to empower our clients by helping them fully understand their legal rights and options as a parent. We can assist with common questions such as:

  • When do I have to tell my employer that I am pregnant?
  • How long can I be off on parental leave for?
  • What happens to my benefits while I am on leave?
  • Does my employer have to protect my job?

PREGNANCY DISCRIMINATION

Women should not be disadvantaged because they choose to have children, nor should parents be disadvantaged for taking time off to be with their children.

Canadian law prohibits pregnancy related discrimination. Such discrimination is defined as any action, decision, or policy that negatively affects an employee because of pregnancy or pregnancy related circumstances.

Examples of pregnancy discrimination include:

  • Asking a prospective hire whether she is pregnant, planning to become pregnant, or has recently given birth
  • Refusing to hire or promote an employee because she is pregnant, is planning to become pregnant, or has recently given birth
  • Harassing an employee because she is pregnant, planning to become pregnant, or has recently given birth
  • Failing to provide accommodation to an employee who is pregnant, planning to become pregnant, or has recently given birth
  • Terminating an employee because she is pregnant, planning to become pregnant, or has recently given birth, including at the end of a maternity leave.

Canadian law also provides protection from discrimination based on “family status”, and extends protections to both parents, covering such situations as parental leave, adoption leave, and others, which apply to both mothers and fathers.

PARENTAL LEAVE

Pregnant employees have the right to a pregnancy leave of up to 17 weeks of unpaid time off work.

In addition, new parents have the right to a parental leave when a baby is born or first enters their care. A birth mother can take both pregnancy and parental leave. Birth mothers who took a pregnancy leave are entitled to up to 35 weeks, whereas birth mothers who did not take pregnancy leave, as well as all other parents, are entitled to up to 37 weeks of parental leave.

An employer is prohibited from penalizing an employee in any way if that employee is eligible or will become eligible for leave, or has taken or is planning to take such leave. Employees who are on leave have the right to continue to receive benefits, earn credits for length of service/seniority, and must be given their job back at the end of their leave (in most instances).

Performance Reviews & Performance Improvement Plans

Undergoing the performance review process at work can be a daunting experience – even more so if your performance review is negative, if you feel it is unfair, or if your employer has introduced a performance improvement plan. While a less than positive performance review or the implementation of a performance improvement plan can be a cause for concern, this does not necessarily mean that your employment is immediately at risk. However, it does mean that you should seriously assess the situation.

At Rousseau Mazzuca LLP our experienced and knowledgeable employment lawyers can help guide you through the uncertainty of an undesirable performance review or the introduction of a performance improvement plan. We can help you understand all of your options, and ensure you are properly positioned for next steps. We want to empower our clients and will assertively protect your rights whenever necessary.

EXCEPTIONS FOR OVERTIME PAY

Performance improvement plans, or “PIP’s”, are often introduced by employers when performance problems are identified. The PIP formally notes the employer’s concerns, identifies areas that must be improved, and creates deadlines or time frames within which these areas must improve.

Being put on a PIP is often a red flag for employees. Common questions that arise are:

  • Is my employer setting me up to fail?
  • Do I have to sign-off on the PIP?
  • How do I respond to this?
  • How do I protect myself?

If you have been given a PIP, it is important to speak to a lawyer as soon as possible, and before you sign any documentation, to obtain a clear explanation of potential risks and what you can expect going forward. The employment lawyers at Rousseau Mazzuca LLP can help you to formulate a game plan to ensure the PIP is drafted fairly and that your rights are protected.

Severance Packages

In most cases, an employer is allowed to terminate or fire an employee. The employer generally does not need to have a good reason to terminate. When the employee is terminated, the employer needs to provide that individual with either advance notice or payment, or sometimes both. This is often referred to as reasonable notice or severance.

Most employees don’t know how much they are entitled to upon termination, and accept less than they should. If you have been terminated, it is essential to meet with an employment lawyer before you sign anything. You may be entitled to much more than the employer provides in its initial offer.

The experienced, strategic, and knowledgeable employment lawyers at Rousseau Mazzuca LLP routinely guide employees through the termination process. Our goal is to help our clients understand their options, and protect their rights while avoiding prolonged legal disputes. We have many years of focused experienced assisting clients in numerous industries and sectors.

IMPORTANT FACTORS TO CONSIDER IN TERMINATIONS

Employers and employees often disagree over how much notice or pay is fair. There are certain minimums that may apply, such as those in the Employment Standards Act, 2000. Most employees, however, are entitled to much more than these minimum amounts. There is no limit on the amount of notice of termination to which an employee is entitled. A fair severance period is often up to two years long.

The length of severance or notice is not the only issue. Employees may be entitled to bonuses, commissions, benefits, and stock options as well.

Determining what impact, if any, there will be on the severance package when and if the employee finds a new job is also important.

Of course, where an employee has engaged in serious misconduct, such as stealing from the employer, the employer generally is not obliged to provide any notice of termination or severance. Often, the employer claims the employee behaved badly and withholds all payments. Employees are always allowed to challenge whether or not there was “just cause” for dismissal. Determining whether there was just cause sometimes turns on whether there actually was any misconduct. Sometimes, the question turns on whether the misconduct was serious enough to justify dismissal.

Sexual Harassment

Every employee is entitled to a safe work environment free of behaviours and situations that make them feel uncomfortable or at risk.  Sexual harassment in the workplace should never be tolerated. Unfortunately, this behavior can happen. If you think you have been the victim of sexual harassment, it is important to contact a lawyer as soon as possible to assist you in protecting your rights and ensure the problem is addressed right away.

At Rousseau Mazzuca LLP, our knowledgeable, experienced, and compassionate employment lawyers can assist you in assessing your options and ensuring your employer investigates and resolves the harassment quickly. We strive to provide you with excellent guidance and advice to achieve peace of mind and move forward. We can assist with common questions such as:

  • Have I waited too long to say something to my employer?
  • What happens if I make a complaint?
  • What if my employer thinks I am lying?
  • Do I have to continue working with the person who is harassing me?
What is sexual harassment?

Sexual harassment is a form of discrimination based on sex or gender and is prohibited under Canadian law. Some specific examples of sexual harassment in the workplace include:

  • Unwanted touching, including demanding hugs, back rubs, or other unnecessary physical contact
  • Asking for or demanding sex in exchange for a benefit, favour, or reward – such as a job opportunity or promotion
  • Using sexually explicit, insulting, inappropriate, or demeaning language
  • Making sex-related comments about a person’s physical appearance
  • Repeatedly asking a colleague on dates, and not accepting “no” as an answer
  • Making sexual or inappropriate jokes or innuendoes
  • Bragging about sexual ability, sexual activities, or otherwise sharing inappropriate information about someone’s personal life
  • Using rude, insulting, or inappropriate language or making rude, insulting, or inappropriate comments
  • Posting, sharing, texting, emailing, or otherwise disseminating pornography and sexual and/or explicit images

Individuals who are sexually harassed at work have several options available including making an internal complaint, filing a human rights claim or suing in Court.

What Duties Does An Employer Have Around Sexual Harassment?

All Ontario employers must take steps to both prevent sexual harassment and respond to any instances of sexual harassment that do occur despite their prevention efforts.

All employers must have a clear, comprehensive, up to date sexual harassment policy in place, including a detailed complaint, investigation, and resolution process.

Employers are obligated to promptly respond to and investigate each and every sexual harassment complaint, even if they may think it is without merit.

Once an investigation is complete, a report of the investigation’s findings should be made. If the harassment claim is found to be true, an employer must immediately move forward with a resolution to the issue.

What Duties Does An Employer Have Around Sexual Harassment?

Helping Employees Collect Unpaid Wages & Commissions

Sadly, wage disputes between employees and employers are common and can include disagreements over wages, commissions, vacation pay, and any other money owed to an employee.  Fighting your employer for unpaid money can be a daunting task, and many employees are hesitant to stand up for their rights out of fear of possible repercussions.

At Rousseau Mazzuca LLP in Toronto, our experienced and knowledgeable employment lawyers can guide you through the process of obtaining any money that is rightfully owed to you. We provide you with the information you need to understand your rights and the confidence to move forward with a claim. We will represent you assertively where necessary and ensure that you receive everything you are entitled to.

UNPAID WAGES, INCLUDING COMMISSIONS

Common Questions that arise include

  • Can I claim a bonus or is it “discretionary”?
  • Can my employer fire me if I make a claim?
  • What records do I need to have?
  • Is my employer required to keep records?
  • How far back can I go?

We regularly successfully obtain:

  • Deferred salary
  • Commissions
  • Bonuses
  • Unpaid hours
  • Claims based on written plans
  • Claims based on verbal promises
  • Claims based on past practice
  • Vacation pay on bonuses and commissions

Unpaid wage claims are sometimes best brought through a court claim, and sometimes best through a claim with the Ministry of Labour (no cap in Ontario).  Directors may be personally liable for unpaid wages.

Workplace Investigations

Many employers respond to allegations of sexual harassment, bullying, discrimination, employee fraud, and other serious matters by launching a formal workplace investigation. Sometimes, this investigation is carried out by an internal investigator, such as a human resources representative. At other times, the employer hires an outside expert to conduct the investigation. In either case, the investigator will normally meet with the employees directly involved and with key witnesses. The purpose of the investigation is to determine what happened and whether any employees engaged in misconduct. Based on the results of the investigation, employees may be disciplined or dismissed.

At Rousseau Mazzuca LLP, our knowledgeable and experienced employment lawyers assist employees in complying with their various legal obligations around workplace investigations. We strive to provide you with the guidance and advice needed to protect your rights, and can address any concerns you may have.

I AM BEING INVESTIGATED, NOW WHAT?

If your employer is investigating your actions, it is important to consult with an employment lawyer as soon as possible. At Rousseau Mazzuca LLP, we will develop a strategy and guide you through the investigation. We know what questions you should ask the investigator before you meet. We can help you with your own answers to the difficult questions. We can de-mystify the process and help you prepare for your meeting(s) with the investigator. We can even accompany you when you meet with the investigator. Don’t simply wait to hear the results of the investigation. Take action now.

FOR EMPLOYERS:

Employee Disability & Illness

Employees taking extended periods off work due to illness, injury, or disability can be a challenging, but common reality for employers.  The most important thing to know is that employers must accommodate an employee’s condition and cannot take action against them, or terminate them because of it.

At Rousseau Mazzuca LLP in Toronto, our knowledgeable employment lawyers provide exceptional legal advice for employers managing employee attendance, disability, illness, and/or injury. We help our clients navigate their obligations and responsibilities in this often complex area of law. We can assist with common questions such as:

  • Can employers ask employees for a doctor’s note?
  • How much information about an employee’s illness, injury, disability, or condition can employers request?
  • Can an employer contact an employee’s doctor directly to ask questions about the employee?
  • What if the employer doesn’t believe that an employee is sick or injured?
  • How much time can employees take off?
  • Do employers have to provide employees with short term benefits, or long term benefits?
  • What do employers need to do to help employees transition back to work?

ACCOMMODATION

Legally, employers have the duty to accommodate an employee’s illness, injury, or disability to the point of “undue hardship”. Howerver, employees do not get to dictate how the employer accommodates their disability.  Employers also do not need to pay full time wages for part time hours, or put up with substandard work.  We can help you comply with your legal obligations without compromising the legitimate needs of your business.

TERMINATION

Sometimes an employer restructures and eliminates the position of an employee who is on medical leave or in a heavily accommodated position.  Other times an employee with a disability has legitimate performance or conduct problems.  When considering terminating an employee with a disability, it is important to make sure you have a sound decision-making process in place.  If you are facing such a situation, consult an experience employment lawyer.  If the termination had already happened and you are facing a discrimination claim we will advocate for you, with both sensitivity and firmness.

Employee Policies & Handbooks

Other than a valid, written employment contract, the next most important tool in an employer’s risk management toolbox are well-crafted employee policies and handbooks. Like employment contracts, policies and handbooks are an employer’s opportunity to set out the rules and guidelines that govern its relationship with workers, and to minimize uncertainty and future concerns. It is also important to note that under Ontario law, there are certain policies that employees are obligated to have in their workplace, such as policies for sexual harassment claims.

The knowledgeable employment lawyers at Rousseau Mazzuca LLP in Toronto, can help employers maximize the benefits of having enforceable policies and handbooks in their workplace. We can review any existing policies, ensure they are fully compliant with an employer’s legal obligations, and re-write them if necessary. We can also draft policies for employers where policies are missing but needed. We have many years of experience and have helped many of employers in various industries and sectors protect their interests and minimize risk.

THE IMPORTANCE OF EMPLOYEE POLICES AND HANDBOOKS

Under Ontario employment law, there are a number of policies and handbooks that employees must have in their workplace, including:

  • Workplace violence and harassment policies;
  • Health and safety policies.

Employers are obligated, by law, to have these policies in their workplace and must keep them up to date. In addition, all employees and contractors must be made aware of these policies, and must receive periodic training, as required.

In addition to merely meeting your legal obligations, policies and handouts can and should also be used strategically.  They can save management time, clearly set out expectations, and reduce the likelihood of accusations of favoritism or discrimination.  Carelessly written policies and handbooks can create large liabilities for banked vacation, sick leave, overtime, and expensive external investigations.  On the other hand, well-written policies in these areas can lead to substantial savings.

Employment Contracts

The most important tool in an employer’s risk management toolbox is a valid employment contract. Contracts lay out the details of the relationship between an employer and an employee, clearly outline expectations, and serve to remove any uncertainty that may exist. Employers should have up-to-date, written contracts with every employee in their workplace and should consult with an employment lawyer before finalizing any employment agreement. A lawyer will ensure that your contract is valid, protects your interests, and minimizes risk and the possibility of future problems.

At Rousseau Mazzuca LLP in Toronto, our knowledgeable employment lawyers have drafted hundreds of employment contracts for clients in various sectors, including banking, retail, manufacturing, construction, mining, legal, and transportation.  We can review your existing agreements and make sure they are current, valid, and continue to protect your interests, or we can help you draft new contracts.

ELEMENTS YOU MAY WANT TO INCLUDE IN AN EMPLOYMENT CONTRACT

  • Relocation clauses, which allow the employer to change employees’ place of work (including to another province or country)
  • Reassignment clauses, which allow the employer to demote employees without compensation
  • Non-competition clauses, which prevent employees from working elsewhere in the same industry
  • Non-solicitation clauses, which prevent employees from remaining in touch with clients or suppliers
  • Discretionary bonus clauses, which remove employees’ right to a bonus that might have been promised

IMPORTANT PROVISIONS IN EMPLOYMENT CONTRACTS

The most common provision employers try to introduce without any prior discussion or agreement is a termination clause. This can reduce an employee’s right to notice of termination or severance by more than 90%. For example, a senior employee who might otherwise be entitled to two years of notice of termination could have that period reduced by a contract to just 8 weeks.

Prior to finalizing any employment contract with an employee or a contractor, you should ensure that he/she understands what is being agreed to, and has had the opportunity to obtain their own legal advice. You should also be prepared to negotiate some of the terms in the agreement.

Human Rights & Discrimination Claims

In Ontario, it is against the law for an employer to discriminate against an employee or candidate for employment based on gender, sexual orientation, ethnic origin, or similar factors. While most employers do not actively set out to discriminate against their employees, or candidates they are considering for employment, they can be subject to human rights complaints or discrimination claims from individuals who feel they were mistreated. Human rights complaints and discrimination claims can be complicated, and can become quite emotional. It is crucial to receive legal advice early in the process if you have had a claim filed against you in order to ensure you understand your rights and protect yourself.

The employment lawyers at Rousseau Mazzuca LLP in Toronto provide unparalleled legal representation in human rights and discrimination claims. Our lawyers are knowledgeable and experienced, and tough and assertive when necessary. We have many years of experience defending business owners, managers, supervisors and other workplace parties during human rights disputes. Our priority is to guide clients through the human rights system while defending their actions and protecting their rights.

DISCRIMINATION IN THE WORKPLACE

Discrimination occurs when an individual is treated differently because of a protected personal characteristic. Under the Ontario Human Rights Code, employers are prohibited from discriminating against employees or prospective employees. In addition, as with harassment, employers also carry the main responsibility of taking reasonable steps to keep the workplace is free from discrimination.

Discrimination can be overt, such as firing someone because of their religion, or it can be subtler, for example, not hiring an older candidate because of the assumption that they are not familiar with computers and other technology.

If an employee discriminates against another employee, the employer can sometimes be liable for their actions, and found to be responsible even if the employer did not know about that employee’s actions. An employer can also be found liable for the actions of third parties coming into the workplace such as customers or clients. An employer can even be found liable for actions of its employees that take place outside of the workplace or outside of regular working hours. This liability can carry significant financial penalties.

GROUNDS FOR DISMISSAL

Under the Ontario Human Rights Code, it is illegal to discriminate against someone in the workplace on the basis of their:

  • citizenship
  • race
  • place of origin
  • ethnic origin
  • colour
  • ancestry
  • disability
  • age
  • creed
  • sex / pregnancy
  • gender identity
  • gender expression
  • family status
  • marital status
  • sexual orientation
  • record of offences

Discrimination Claims

While discrimination certainly occurs, many employees are quick to claim that discrimination is behind every poor performance review or termination.  If an internal complaint is made, we can help you investigate it, while also seeking to prevent escalation.  If a claim is made in the courts or to a human rights tribunal, we can help you dispassionately assess the risks, and firmly and fearlessly advocate on your behalf.

Independent Contractor vs. Employee

The main commercial benefit of using an independent contractor is normally one of efficiency. A contractor will usually only be paid for the actual time or tasks needed. A regular employee needs to be recruited and trained, and will normally need to be paid every hour, day, and week, regardless of what amount of work the employer requires. In addition, using a true independent contractor allows the employer to avoid paying overtime, public holiday pay, and vacation pay. It also allows the employer to avoid paying for WSIB coverage. It also allows the employer the ability to end the relationship with much less notice than an employee would be due. To some degree, it can also insulate the employer from claims for breaches of the Human Rights Code and some other employment law statutes.

At Rousseau Mazzuca LLP in Toronto, our knowledgeable employment lawyers have drafted hundreds of employment contracts for clients in various sectors, including banking, retail, manufacturing, construction, mining, legal, and transportation.  We can review your existing agreements and make sure they are current, valid, and continue to protect your interests, or we can help you draft new contracts.

THE DIFFERENCE BETWEEN INDEPENDENT CONTRACTORS AND EMPLOYEES

Sometimes, however, employers label individuals as independent contractors when, in the eyes of the law, they are actually employees. Courts and tribunals will generally look at the day-to-day reality of the relationship, not at the label that was used. Getting it wrong can have very serious consequences for the employer, including:

Additional Pay and Severance:

When employees are terminated they are entitled at least to termination and severance pay under the relevant employment legislation, including the Employment Standards Act, 2000.  If your contract did not consider the possibility that the contractor was an employee, you may be liable for “reasonable notice” of termination, which could reach 18-24 months.

Taxation and Statutory Deductions:

Employers are obligated to deduct and remit taxes, as well as other statutory deductions such as Employment Insurance and Canada Pension Plan premiums. Contractors normally do not have taxes deducted at source, and are relied upon to pay their taxes themselves. Where an employer fails to withhold and remit taxes, the Canada Revenue Agency can order the employer to pay all of the taxes that should have been withheld and remitted, for every employee, for the present and previous years. The employer can also be assessed penalties and interest.

Vicarious liability:

Where a worker is an employee, the employer also becomes vicariously liable for their actions in the course of their employment. Just as the employer is an easier target for the CRA, it is also an easier target for third parties claiming to have been injured by an employee. Negligence claims against employers for their employees’ actions and inactions are common.

At Rousseau Mazzuca LLP we can help employers understand the pitfalls of incorrectly classifying employment relationships, discuss best practices for moving forward, and will review or draft employment contracts for your workplace. Sometimes, small changes in the way the relationship is organized can make a big difference in tipping the contractor/employee determination one way or another.  We provide knowledgeable advice and will assertively represent your interests if necessary.

DETERMINING IF AN INDIVIDUAL IS AN EMPLOYEE OR AN INDEPENDENT CONTRACTOR: A TEST

  • A court will review the following factors in order to determine whether the worker is a contractor or an employee:
    • Control
    • Ownership of Tools
    • Chance of Profits
    • Risk of Loss

    Control

    The court will ask whether the worker controls the place, and manner in which their work is performed? Do they set their own hours? Working arrangements where a worker has a lot of flexibility over how and when their work is performed suggest an independent contractor relationship.

    Ownership of Tools

    The court will ask whether a worker controls his or her tools, supplies, work space, or equipment. A working arrangement in which a company provides highly specialized or expensive equipment points towards an employment relationship. On the other hand, a situation where a worker supplies their own equipment suggests a contractor relationship.

    Chance of Profits

    The court will review the workers earning potential. A worker who is paid an hourly rate, limiting their opportunity to increase their earnings, is more likely to be considered an employee. A worker who is paid piecemeal, meaning that greater efficiency may increase their profits, is more likely to be considered an independent contractor.

    Risk of Loss

    A court will assess a worker’s risk of loss. A worker that is at a greater risk for losing money if, for instance, work is not done correctly, is more likely to be considered an independent contractor.

Misconduct & Discipline

Establishing and communicating clear expectations, providing appropriate training and supervision, and giving regular feedback are the most effective ways of ensuring employees are performing well, avoiding the need for discipline. Unfortunately, performance or behavioural issues can arise even where employers follow best practices. Dealing with an employee that fails to meet expectations or is otherwise problematic can be a stressful and challenging task for an employer.

The employment lawyers at Rousseau Mazzuca LLP in Toronto, regularly guide employers through the often thorny process of correcting behaviour and performance or disciplining employees. Our goal is to empower our clients by helping them understand all of their options, and ensure that they are well-positioned to move forward.

MANAGING EMPLOYEE PERFORMANCE

Most employees want to succeed and do well at work. Employers, managers, and supervisors can help them do this by:

  • Providing training and orientation
  • Clearly outlining expectations, and clarifying where necessary
  • Providing regular direction and feedback
  • Identifying any problems early and speaking to the employee about them right away

Despite these best practices, employees can sometimes underperform, exhibit incompetence, or engage in misconduct requiring progressive discipline or dismissal for just cause.

PROGRESSIVE DISCIPLINE IN THE WORKPLACE

Addressing underperformance in the workplace is a multi-step, progressive process of increasingly severe consequences for misconduct or underperformance.  Typically, the consequences will include warnings and may include suspension.  Progressive discipline can be effective in correcting behaviour.  Even when it does not succeed in helping the employee, a well carried out progressive discipline process can later be used as a defence if an employee files a claim for wrongful dismissal, discrimination, and/or other claim against an employer. 

DISMISSAL FOR JUST CAUSE

Certain serious incidents such as illegal activity, abuse, fraud, or theft can be grounds for immediate dismissal for just cause without the need for an employer to go through the progressive discipline process. The employer must prove that such serious misconduct occurred. In many situations, an investigation is wise, even when the evidence of wrongdoing seems overwhelming. Following the proper procedures can make the difference between successfully establishing just cause instead of paying at a hefty severance.  Any employer contemplating a just cause dismissal should contact an employment lawyer before taking any action.

Non-solicitation & Non-competition Agreements for Employers

Employers often want to include non-solicitation and non-competition clauses in employment contracts to restrict where employees can work, should they leave the company, and place some limits on the activities that they can engage in. This is generally intended to prevent former employees from stealing business, clients, confidential information, or otherwise harming the employer’s business. In Canada, these clauses (also known as “restrictive covenants”) can be difficult to enforce. Employers who want a restrictive covenant in an employment contract should obtain legal advice from a lawyer with extensive experience in this area. The more carefully drafted a covenant is, the more likely it is to succeed.

The employment lawyers at Rousseau Mazzuca LLP have drafted, reviewed, interpreted, and challenged, and defended hundreds of non-solicitation and non-competition clauses for employers in various industries. We understand the nuances of correctly drafted and enforceable clauses, and can help employers protect their business and their interests.

NON-COMPETITION AGREEMENTS

  • Non-competition agreements, commonly referred to as “non-competes”, generally state that former employees cannot work for a business, or start their own business, that is similar to that of the employer they are leaving.Non-competes are hard to enforce. An employer who wants to enforce a non-compete must convince the court that it is absolutely necessary in order to protect the employer’s interests. In order to be enforceable, a non-compete must also be clear and unambiguous and reasonable in terms of:
    • Geographic scope
    • Length
    • Activities that it limits.

    In the right situation, however, a non-compete is vital and immensely powerful.

    If you are hiring an employee who is under a non-compete, or if you want to add one, you should consult with a knowledgeable employment lawyer.  Valid and enforceable non-competes require great care, but are possible.

NON-SOLICITATION AGREEMENTS

  • Non-solicitation agreements generally state that after leaving a company, an employee agrees not to approach clients of their former employer, or other employees, with the goal of getting them to leave that employer. These agreements are more easily enforceable than non-competes, as long as they are clear and reasonable.Employers who are considering including a non-solicitation agreement in an employment contract should always consult with a lawyer before doing so. Getting legal advice will increase the chances that the non-solicitation agreement will be enforced and that your business will be safeguarded.If the situation is reversed, and you are hiring an employee who is subject to a non-solicit, it is important to consult with a lawyer to accurately assess your risks, and to understand how to minimise them.
Overtime Pay

Many employers do not think about overtime pay, or assume that overtime does not apply to their employees. However, this can be a costly mistake. Overtime pay is mandatory for most employees in Ontario, including full-time employees, part-time employees, casual employees, and students (with some exceptions). Contrary to the belief of many employers, overtime applies whether an employee is paid on an hourly basis or has a salary.

For qualified employees, overtime starts once that employee works a certain number of hours per week (depending on which legislation applies to that workplace).  Once that point is reached, the employee is entitled to 1.5 times their regular pay (commonly referred to as “time and a half”).

At Rousseau Mazzuca LLP, we have defended employers from individual as well as group claims for overtime pay.  Our experienced employment lawyers can help save costs while meeting your overtime obligations.  If a legal claim has been filed against you, we can guide you through the process and decrease your risk.

EXEMPTIONS FOR OVERTIME PAY

The majority of employees are eligible for overtime, including students, part time employees, casual employees, full time employees. It does not matter whether your employees are paid hourly or are on a salary. It is very challenging for an employer to contract out of their overtime obligations.

There are, however, a number of exceptions of employees who do not qualify for overtime. For instance, under the Employment Standards Act, managers/supervisors, travelling salespeople, and IT professionals are not eligible.

CONSEQUENCES FOR FAILURE TO PAY

Employers should be careful before they assume that an employee is not entitled to overtime pay. Employers must understand that there can be serious financial implications for failure to pay overtime, including the obligation to pay money owed retroactively. There have been successful class action lawsuits filed by large groups of employees claiming back pay due to unpaid overtime.

In addition, if a complaint is filed under the Employment Standards Act, the Ministry of Labour can come into the workplace and perform an investigation of everything in that workplace, not just the employment of the individual who filed the complaint. This can lead to additional, unforeseen penalties.

Sexual Harassment

All workers are entitled to a safe work environment free of behaviours and situations that make them feel uncomfortable or at risk.  Sexual harassment in the workplace should not be tolerated, and, under the law, employers have obligations to try to prevent it.  When a complaint of sexual harassment is made, whether or not it is un-founded, that trigger a number of additional obligations.

At Rousseau Mazzuca LLP, our knowledgeable and experienced employment lawyers assist employers in complying with their various legal obligations around sexual harassment issues in the workplace.  We strive to provide employers with the guidance and advice needed to ensure a safe and healthy workplace, and can address any issue affecting that workplace in a timely and effective manner.  Where a lawsuit or human rights complaint is launched, we provide sensitive but firm advocacy on your behalf.

WHAT IS SEXUAL HARASSMENT?

Sexual harassment is a form of discrimination based on sex or gender and is prohibited under Canadian law. Some specific examples of sexual harassment in the workplace include:

  • Unwanted touching, including demanding hugs, back rubs, or other unnecessary physical contact
  • Asking for or demanding sex in exchange for a benefit, favour, or reward – such as a job opportunity or promotion
  • Using sexually explicit, insulting, inappropriate, or demeaning language
  • Making sex-related comments about a person’s physical appearance
  • Repeatedly asking a colleague on dates, and not accepting “no” as an answer
  • Making sexual or inappropriate jokes or innuendoes
  • Bragging about sexual ability, sexual activities, or otherwise sharing inappropriate information about your personal life
  • Using rude, insulting, or inappropriate language or making rude, insulting, or inappropriate comments
  • Posting, sharing, texting, emailing, or otherwise disseminating pornography and sexual and/or explicit images

WHAT DUTIES DOES AN EMPLOYER HAVE AROUND SEXUAL HARASSMENT?

All Ontario employers must take steps to both prevent sexual harassment and respond to any instances of sexual harassment that do occur despite their prevention efforts.

All employers must have a clear, comprehensive, up to date sexual harassment policy in place, including a detailed complaint, investigation, and resolution process.

Employers are obligated to promptly respond to and investigate each and every sexual harassment complaint, even if they may think it is without merit.

Once an investigation is complete, a report of the investigation’s findings should be made. If the harassment claim is found to be true, an employer should immediately move forward with a resolution to the issue.

Employers should be aware of the consequences of non-compliance with their legal obligations. Individuals who are sexually harassed at work, or feel that their employers are not adequately preventing these issues, have several options available including filing a human rights claim or suing.

TERMINATIONS

Terminating an employee is one of the most difficult decisions that an employer must make. It is also an aspect of workplace relations that is fraught with landmines and possible risks, and requires careful navigation. There is a right and a wrong way to terminate an employee and taking the wrong way can significantly increase the legal and financial consequences for an employer.

The experienced, strategic, and knowledgeable employment lawyers at Rousseau Mazzuca LLP routinely guide employers through the best practices of terminating an employee. Our goal is to help our clients understand their options, minimize risk, and avoid prolonged legal disputes where possible, while nonetheless firmly opposing unreasonable demands from departing employees. We have many years of focused experience assisting clients in numerous industries and sectors with their most challenging termination situations.

BAD FAITH DAMAGES

If an employer acts in bad faith at the time of termination, the terminated employee may be entitled to additional money on top of their termination and/or severance pay. Examples of bad faith actions by an employer include wrongly accusing an employee of serious misconduct warranting just cause dismissal, or dismissing someone in a callous or unprofessional manner.

DISMISSAL FOR JUST CAUSE

Certain serious incidents such as illegal activity, abuse, fraud, or theft can be grounds for immediate dismissal for just cause without the need for notice or a compensation package. This often results in a wrongful dismissal lawsuit. Any employer contemplating a just cause dismissal should contact an employment lawyer before taking any action.

IMPORTANT FACTORS TO CONSIDER IN A TERMINATION

Most workplaces in Ontario are governed by the Ontario Employment Standards Act. The Act sets out a number of obligations and rights that are triggered during a termination.

Termination Pay and Severance Pay

One of the most important termination obligations offered by the Act is termination and severance pay. The protections under the Act provide departing employees with a “floor” of rights that cannot be contracted out of and must be provided by employers.

Employers are obligated to provide departing employees with notice of termination, or pay in lieu of that notice. This notice and/or pay is calculated based on the length of time the employee worked for that employer:

Length of Employment Notice Required
Less than 3 months None
3 months but less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks

It is important to note that the above represents only the bare minimum requirements under the Act. Ontario courts have regularly recognized that departing employees are often entitled to more notice than this guaranteed minimum, and have awarded more notice in many cases.

In addition to termination pay, employers are also obligated to provide certain departing employees with severance pay. This applies only to employees who have been working for an employer for at least five years, and where the employer has an annual payroll of at least $2.5 million. Severance pay can far exceed termination pay as it is based on the number of years and months of service, up to a maximum of 26 weeks’ pay.

Termination Provisions in Employment Contracts

Well-drafted employment contracts should contain carefully worded termination provisions setting out what happens after a termination. A termination provision in an employment agreement must provide the minimum notice standards set out in the Ontario Employment Standards Act and cannot violate any other workplace law, such as the Ontario Human Rights Code. As long as these minimum obligations are met, the employer can use employment contracts to limit their potential liability following a termination.

If there is no written employment contract, the contract does not have a termination provision, or the employment contract is not valid or enforceable, then the employee is entitled to “reasonable notice” under what is known as the “common law” which may significantly increase an employer’s liability following a termination.

“Reasonable Notice” Considerations

Ontario courts have repeatedly stated that in many circumstances, employees are entitled to more notice of termination than the minimum provided for under the Employment Standards Act. In determining what this amount of notice should be, courts will look at a number of factors, including:

  • Length of service – long term employees will often receive far more notice than the minimums guaranteed by the Employment Standards Act;
  • Age of employee – employees who are older, or close to what was historically retirement age, will often receive far more notice;
  • Level of responsibility/position – employees in higher level or more senior positions, such as management positions, will get more notice;

CONSEQUENCES FOR FAILURE TO PAY

Employers should be careful before they assume that an employee is not entitled to overtime pay. Employers must understand that there can be serious financial implications for failure to pay overtime, including the obligation to pay money owed retroactively. There have been successful class action lawsuits filed by large groups of employees claiming back pay due to unpaid overtime.

In addition, if a complaint is filed under the Employment Standards Act, the Ministry of Labour can come into the workplace and perform an investigation of everything in that workplace, not just the employment of the individual who filed the complaint. This can lead to additional, unforeseen penalties.

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M5H 2M5, Toronto, Ontario
(416) 304-9899
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