An employer needs to consider a few different things if they want to avoid unintended legal problems that may arise in the workplace. Common employment law claims from employees that an employer may be involved in are wrongful dismissal claims, constructive dismissal claims, human rights violations and discrimination and employment contract or employment agreement disputes. Employment law litigation with respect to these issues can be both costly and difficult for employers. This blog lists three key things that an employer should do to prevent or minimize the risks of litigation related to employment law issues.

1. An employer should approach an employment lawyer before firing an employee.

Sometimes, an employer may decide that a good strategy to minimize risks and costs is to offer an employee notice of termination or pay in lieu of that notice that is far below what the employee is reasonably entitled to upon dismissal. We find that these strategies, although they may seem appealing, often fail and the result becomes the opposite of what the employer expects or intends to do. For example, the employee may simply sue the employer for wrongful dismissal rather than engage in negotiation because of the lack of an offer or an offer by the employer so low that the employee does not feel it would be effective to engage in negotiation.

An employment lawyer can assist the employer by reviewing the employment contract and the set of circumstances around the termination of the employee to account for certain legal issues like the amount of reasonable notice that should be offered. Once the review is complete, the employment lawyer can discuss with the employer how best to dismiss the employee and what to offer the employee in terms of a reasonable notice or termination or a termination or severance package, if any.

2. An employer should properly address concerns that an employee has about workplace bullying, harassment or discrimination.

Employers are obligated to ensure that their workplace is free from harassment and bullying. They have a duty to investigate complaints about workplace harassment made by an employee. Also, employers have a duty to accommodate their employees as set out in Ontario’s Human Rights Code, 1990. The Code prohibits employers from discriminating against employees based on various grounds, including disability, race, sexual orientation, family status, etc.

One of the worst things that an employer can do is ignore complaints of workplace bullying, harassment or discrimination from an employee. Failing to address these issues can lead to an employee making a claim for constructive dismissal. An employment lawyer can help employers deal with issues in the workplace by providing legal advice, preparing various policies, correspondence or other documentation, investigating the complaint, helping to negotiate a resolution to these issues, etc.

3. An employer should develop clear workplace policies and employment agreements.

Employment contracts create a lot of confusion for employees and employers alike. All employers (from a large corporation to a single individual who employs only a few employees) should use an employment lawyer to prepare an employment agreement or employment contract for their employees.

The employer will be able to address recent developments in employment law so that their employment agreement will offer the best protection against being sued for wrongful dismissal. For example, the most contentious and litigious clause in an employment contract is the termination clause. This is because, as a lot of employers are surprised to learn, non-unionized employees in Ontario are entitled to common law reasonable notice of termination unless they have contracted out of that entitlement in an employment agreement with an enforceable termination clause. An employer can seek to protect itself from outdated termination clauses that offer no safeguards to the employer but usually only with the assistance of an employment lawyer.

We have written a lot about employment contracts on our website. Please review the following for more information and other helpful tips.

• Attention Employers! Why You Should NEVER Draft You Own Employment Agreements
• Conflict of Interest and Confidentiality Clauses in An Employment Contract Can Make a Termination Clause Unenforceable
• Why Employers Should Have Their Employment Contracts Prepared by an Employment Lawyer and Reviewed on an Annual Basis
• The Unique Legal Status of Fixed-Term Employment Contracts in Ontario

How can Zeilikman Law help?

Approaching an employment lawyer can be very helpful to an employer who is experiencing any of these employment law issues. Employment lawyers like the ones at Zeilikman Law can assist an employer by reviewing the facts surrounding the issue and helping them determine what the next best steps are to take. For more information please refer to our blog entitled “When Should an Employer Hire an Employment Lawyer?”

You can contact our office at (905) 417-2227 or online here to schedule your own confidential consultation with Zeiikman Law.