Below are some of the many aspects of employment law we assist employees with on a regular basis:
There is the possibility of wrongful dismissal or wrongful termination where a person’s employment has been terminated without reasonable notice. Where wrongful dismissal is present, the individual may be entitled to compensation. An employer does hold the right to terminate an employee provided that there is a reasonable notice to the employee of the employer’s intention and the termination is otherwise statutorily compliant.
Constructive dismissal occurs when an employer unilaterally alters a term otherwise essential to the employment contract or evinces an intention to not be bound by an essential term to the employment contract, and as a result, the employment can be deemed terminated by the courts. This is a useful tool for employees seeking relief when the substance of their role as an employee is largely altered to their dissatisfaction and without reasonable notice.
Human Rights Violations & Discrimination
Human rights violations in Canada, and Ontario, include issues such as harassment in the workplace, unfair discrimination based on race, religion, colour, ethnicity, creed, sex (including maternity leave), gender identity or expression, sexual orientation, age, marital status, family status, disability or language, among other prohibited grounds of discrimination.
Family Status Discrimination
Family status protects a range of families and familial relationships from discrimination while recognizing that families are becoming increasingly diverse. This type of discrimination can appear when a person is discriminated against based on the identity of a particular family member, where parents are discriminated against for having children, spousal relationships, or adult children who are discriminated against for caring for their ageing parents.
Investigations Under Occupational Health & Safety
Employees in Ontario have the right to work in conditions that are safe and free from unnecessary & unreasonable hazards, violence and harassment. Every employee has the right to work in safe environments, without having to sacrifice their health and/or safety in order to do their job. Failure to abide by the appropriate norms may cause employers to face prosecution and substantial fines.
Employment Insurance (EI) Benefits
EI Benefits are meant to compensate workers who have become unemployed through no fault of their own. The benefits cover any worker who is engaged in insurable employment. In Canada, most employment qualifies for EI benefits. In order to qualify, the worker must be subject to a written or implied contract of employment. In addition, they must receive earnings that are attributable to that employment.
In Canada, former employees are required to take reasonable steps to mitigate their damages in a wrongful dismissal case. Although the onus is generally on the employer to prove that the employer to raise the mitigation issue it is always best for the dismissed employee to be able to show documented proof that he or she is making an effort to find new employment, of a similar type. If the industry for reemployment in a similar type of career is difficult, it will be used as one of the factors to determine whether the person took reasonable steps to mitigate damages by changing careers to find new employment.
In order to resign from a position, the employee must freely give and voluntarily provide an offer of resignation (for example, through a letter), with an exact termination date. Until the employer has accepted that offer, the resignation is not finalized and has not terminated the employment relationship. The employee may revoke his or her offer of resignation under certain specific circumstances.
A demotion occurs where an employee’s job rank, title or status is lowered. A demotion can either be voluntary or involuntary and may result in a breach of the employee’s contract. Some courts have held that an employer may demote an employee when there is cause to terminate the employee; however, things are often more complicated and it is questionable just when it is appropriate for the employer to demote someone because of the above considerations.
Change of Duties & Responsibilities
In Ontario, every employer has the right to make changes to an employee’s duties and responsibilities, as a result of the business needs to be properly managed and adapt to changing market conditions. However, the employer must do so properly in order to avoid liability. When an employer unilaterally makes changes, they are usually expected to provide appropriate notice of the changes to the employee’s duties and responsibilities, especially when they may amount to substantial changes.
Leave of Absence
A leave of absence essentially allows employees to be able to take unpaid and, in some instances, paid, time off from work. An employee may be eligible for a leave of absence regardless if they are full-time, part-time, permanent or term contract. The various laws in Canada protect employees from being discriminated against for taking a leave of absence.
An employer has to provide equal pay for work that is substantially the same, requires the same skill, effort and responsibility and is performed under similar working conditions in the same establishment (even if the employees work at different locations under the same employer). An employer is not able to lower an employee’s rate of pay in order to create equal pay for equal work.
A class action differs from the usual type of lawsuit. A class-action lawsuit concerns a situation wherein there is an identifiable group of individuals, referred to as a class, which sues another party. Class actions can be advantageous in that they aggregate many claims into one action, thus lowering the cost of litigation collectively, as well as, the amount of time spent in court.
Inducement to Leave Employment
Whether an employee was induced to leave a secure position will have an effect on the manner in which the court frames the issue at hand, such as with termination of an employee. This is due to the fact that there is a presumption that a person would not leave a secured position unless the new job offered was also reasonably secure.
Toxic Work Environment
A toxic work environment is created where there is discriminatory treatment in the workplace leading to intolerable working conditions. For example, this may occur due to racism, ageism, harassment, and/or sexism in the workplace. Many times, the offending conduct, such as yelling or name-calling, must be persistent and repeated.
Independent Contractor Classification
It can sometimes be difficult to determine if you are an employee or an independent contractor. For example, a person may own and be responsible for all of their tools but may have no control over their work, hours or rate of pay. Further, there are many misconceptions about how to tell the difference between an independent contractor and an employee.
Termination for Cause
Many times the term “capital punishment” is used to describe termination for cause in employment and labour law. Since employees are vulnerable to the sudden loss of employment, termination for cause is a serious step in employment law. An employer has the right to terminate an employee for cause without providing reasonable notice.
Non-Compete & Non-Solicitation Agreements
Restrictive covenants, also known as “non-compete” and “non-solicit” covenants, are a staple of many employment contracts. Many employers use these covenants in an attempt to protect their competitive edge in the marketplace. Employers often share important confidential information with their employees, and upon the conclusion of the employment relationship, want to include provisions in an employment contract or severance agreement that brings a reasonable level of protection to their commercial interests.
In Canada, there are some legislated requirements concerning certain types of surveillance. However, the law is constantly evolving. To confront privacy issues in the workplace appropriately, a policy must clearly outline procedures for dealing with, handling, and potentially keeping the private information of its employees.
Sexual Harassment in the Workplace
Any form of harassment can be a harrowing experience for the victim. Sexual harassment in the workplace is of particular concern because it can inhibit an individual from making a living by affecting their performance and comfort.
Long-Term & Short-Term Disability
It is not uncommon for employees to be terminated while on disability or become disabled sometime after the termination of their employment. In either case, individuals are often deprived of significant financial support from their private insurance providers.
Severance Review & Exit Strategies
If you have already been presented with a severance package, it is important to have your severance package reviewed so that your decisions are not muddled by emotions, personal considerations and lack of knowledge. At Zeilikman Law, we approach these reviews with logical and creative solutions.
Professional Discipline & Professional Employees
Our practice encompasses the representation of professionals and counselling in employment-related disputes, as well as, before various disciplinary bodies and tribunals. We handle a wide variety of professional discipline matters involving, among others, the following professions: Engineers, Architects, Social Workers and Social Service Workers, Teachers, Human Resource Professionals, Nurses, and Real Estate Agents & Brokers.
Defamation in Employment Law
Defamation is the act of intentionally harming an individual or individuals by making false or egregious statements about them in writing (libel) or verbally (slander), which damages their reputation or livelihood.
Trials & Appeals
Our experienced lawyers are comfortable inside courtrooms. Whether going through a trial or appeal, we understand that going to court may be your last resort. However, at times when there is a workplace dispute with an employer, which cannot be resolved through alternative dispute resolution methods, litigation may be required.