What is Employment Law in Canada?
Employment Law in Canada consists of statute and common law (case law) that relates to non-unionized employees, independent contractors and dependent contractors. This law applies to all non-unionized employers in all sectors.
I cannot stress enough that every company with employees, should consult an Employment Lawyer BEFORE they attempt to hire, introduce an employment agreement, performance manage, deal with an employee on a leave of absence, or terminate employment, to name a few examples. Here are a few particular areas of concern.
Never use the same employment template for every employee.
The law changes constantly which may render your version of the employment agreement or offer of employment, unenforceable. Due to changes in Court decisions about termination clauses, it is highly likely that the termination clause in the old template you are using is unenforceable and will not restrict severance to statutory entitlements.
Every time you want to hire an employee or independent or dependent contractor, please call me to discuss it. There are many new clauses that should be considered for every employee. Those clauses include probation, lay-off, changes in terms and conditions, remote working arrangements, constructive dismissal, termination of employment, non-solicitation and non-competition, disability and a change of location of your employer’s workplace, to name a few.
Companies want to have predictable and enforceable employment agreements for every employee, no matter the status of that employee. Without contractual controls, a company is at the whim of whatever a Court may say is reasonable in the circumstances which may translate into unexpected expenses.
Call before introducing an employment agreement to an existing employee.
In order for a new EA for an existing employee to be enforceable, the employer must give the employee “fresh consideration” i.e. something of value in exchange for the new terms.
Fresh consideration is NOT merely continued employment. It must be something of real value with a corresponding detriment to the employer. Whether the consideration that you are offering your employee will suffice, is a question of the facts of the particular case. Please call me to discuss this.
An employee has launched a complaint of harassment against another employee. What should you do?
I understand that entrepreneurs running companies are focused on their vision and how to achieve it, rather than focused on human resources issues. Ignoring human resources issues, particularly workplace harassment complaints, is a bad idea.
Companies in Ontario have statutory and common law obligations around complaints of workplace harassment and/or violence. For starters, the Occupational Health and Safety Act, Ontario (OHSA), requires Ontario employers to create, post and review annually, anti-harassment/violence policies. Where there is an occurrence of workplace harassment and/or violence as defined by the OHSA, employers are required to conduct a workplace investigation. This requirement exists even where there has not been a complaint.
An investigation can be conducted internally or via an outside, third-party investigator.
There are cases on the books that dictate how investigations are to be completed and the types of damages a Court can award where investigations are not done properly.
For more information about your company’s obligations surrounding anti-harassment / violence procedures and investigations or for advice on how to respond in the face of a complaint, please call me as soon as possible. In this arena, ignoring an employee’s complaint about workplace harassment, is the wrong way to proceed.
You have an employee who is not performing well. What can or should you do about it?
The Courts allow companies to assess and manage the employee’s skills and capabilities. Performance Reviews (PR) and Performance Improvement Plans (PIP) however, must be fair, truthful, and accurate and must review skills and responsibilities that were in fact, assigned to the employee. An unfair or unreasonable PR or PIP can sometimes amount to a constructive dismissal, so caution is warranted.
As soon as you recognize that you are having a problem with an employee, please call me to discuss. Some of the options in these cases include issuing a PR or a PIP in a genuine effort to help the employee progress. Another option is to terminate the employee’s employment on a without cause basis. Whether that is the right option depends on all the facts of the case. If you choose that option, you will need legal advice on how to do that in a way that does not attract additional liability.
You want to fire any employee who refuses to take the COVID-19 vaccination. Can we do that without paying severance?
Employers in Ontario are required to ensure a safe work environment (Occupational Health and Safety Act) but will run the risk of a constructive or wrongful dismissal claim if they lay off or terminate an employee for refusing to take the COVID 19 vaccination. This is very much a live issue and so far, there have been no Canadian Court decisions in the non-union context, on this specific issue, to give us guidance. Facts are very relevant, and caution is warranted. Please call for advice.
Specific topics of concern for Employers
- Employment agreement creation, review, re-negotiation
- Probation period issues
- Workplace Harassment
- Workplace discrimination
- Disability Accommodation issues
- Medical or stress leave
- Termination during a stress leave
- Termination during a maternity leave
- Workplace Investigations
- Performance Management issues
- Constructive Dismissal
- Termination of employment allegedly with Cause (no severance)
- Termination of employment without Cause (with severance)
- Dealing with the employee’s claim
- COVID19 issues
- Non-competition and non-solicitation covenants
To discuss your needs as an Employer, please call me at 905-257-7714.