If you have a potential legal issue related to your employment, the first question you must ask is: what are my rights as an employee? Put another way: what are the terms and conditions of my employment? Those terms and conditions will determine what you are entitled to if you are fired, or whether the employer can change your working conditions without your agreement. The terms of your employment come from three general sources: your employment contract; the common law; and employment-related legislation.

Your Employment Contract Terms and Conditions 

The foundation for the employment relationship between you and your employer is your employment contract. This contract can be verbal or written—as long as there has been an offer of employment on certain terms, and an acceptance of that offer, a contract of employment will be formed. No matter the form of your employment contract, you should review its terms and conditions carefully to ensure you understand them.

In some circumstances, the terms in an employment contract may be found invalid by the courts. For example, if the terms in the contract violate employment standards legislation, discussed below, those terms will be considered void. In rare cases, courts may also find that a term in an employment contract is unconscionable (grossly unfair to the employee, and agreed to as a result of an overwhelming imbalance in bargaining power). When interpreting an employment contract, if a term in the contract is ambiguous and open to multiple interpretations, courts will favour the interpretation that is more favourable to the party that did not draft the contract (usually, the employee).

If you are unsure about the terms and conditions of your employment contract, or their validity, you should seek legal advice from an employment lawyer.

The Common Law

In addition to the terms and conditions that are “expressly” set out in your employment contract, there are also terms and conditions that are “implied” under the common law (a set of legal principles developed through court decisions). If a certain employment right is not addressed through an express term in your contract, it may nonetheless be implied under the common law.

The most common example of an implied term of employment is the requirement for employers to give reasonable notice to employees upon termination. It is possible that your employment contract states how many weeks or months of notice you are entitled to in the event you are terminated; however, if your contract is silent on that point, then your entitlement to notice of termination is determined through common law legal principles. (See our article on “What is Reasonable Notice?”  for more information.)

There are many implied terms in the common law, which impose obligations on both employees and employers. The primary implied obligations for employees are to attend at work and perform the work assigned to you. Employers also have implied obligations, such as the duty to pay employees for work performed, and, as mentioned above, the duty to provide reasonable notice of termination.

It is important to remember, however, that it is possible for you and your employer to agree to terms and conditions in your contract that differ from the common law principles. In order for those different terms to be accepted by a court, they must be clearly stated.

Employment-Related Legislation

Both of the above sources of rights and obligations—the employment contract, and the common law principles—are subordinate to legislation (written laws passed by the federal Parliament or provincial legislature). Unlike common law principles, employers and employees cannot agree to terms of employment that violate legislation.

The main legislation that relates to your employment is employment standards legislation: for employees regulated under Ontario law, the relevant legislation is the Employment Standards Act. This legislation establishes a “floor”, or a minimum set of employment standards, which your employment contract cannot fall below. This legislation addresses many terms of employment, including wages, hours of work, holidays, and the minimum required notice of termination. As mentioned above, if a term in your employment contract falls below the minimum employment standards, it will be considered void by the courts.

It is important to note that certain types of employees, and certain industries, are excluded from employment standards legislation, which means its terms do not apply to those employees. Some employees are subject to federal employment standards legislation, because they work in an industry that falls under the federal Parliament’s jurisdiction. Advice from an employment lawyer should be sought to determine which legislation applies to you.

Other legislation is also relevant to your employment, including legislation in the following areas: occupational health and safety; privacy; workers’ compensation; and human rights. An employment lawyer can help you understand which legislation applies to you, and how it may impact your employment issue.

Conclusion

Your rights as an employee come from many sources, and as a result understanding your rights is no easy task. These rights will impact a claim you may have for wrongful dismissal, constructive dismissal, or other breaches of your employment contract. The best way to fully understand the terms and conditions of your employment is to review them with an employment lawyer, and obtain advice on how your contract, the common law, and legislation all interact to determine your rights as an employee.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are unsure of the terms of your employment, or are considering making a claim for wrongful dismissal. 

[The following information applies to non-unionized employees. Unionized employees should consult their union representatives to review questions regarding the terms of their employment. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

Kim Patenaude will be presenting a Post-Conference workshop on “Dealing with Discharge and Discipline: Progressive discipline, mitigating and aggravating factors, disability-related issues, union representation, post-discharge rehabilitation” for Lancaster House on Friday, December 12 at the Westin Harbour Castle in Toronto.

If you have brought, or are considering bringing, a claim against your employer for wrongful dismissal, you may believe that you can sit back and watch daytime TV, waiting to recover your damages from the employer. That is not the case: you have a duty to “mitigate” your damages.

 Mitigating or reducing your damages by seeking alternate work

Mitigation means reducing the damages you have sustained by reason of the wrongful dismissal. Specifically, it means looking hard for new gainful employment.  The failure to properly mitigate your damages can result in your reasonable notice period damages being reduced.

Tips for mitigating your wrongful dismissal damages

• Look for reasonably comparable employment: You do not need to accept any job on offer. Your duty is to make reasonable efforts to find comparable employment.
• Keep records: It is important that you keep a record of your efforts, both in a hard copy and electronic file.  You should keep track of everything, including on-line searches, interviews, letters sent out and received, coffee and lunch meetings, etc.  At some point you may well be asked by a lawyer for your former employer what you have done to mitigate your damages.  These steps will ensure that have a complete answer.
• Keep track of any expenses incurred: As part of mitigation, you may incur some expenses—for example, to obtain training or to start a small business.  It may be possible to claim certain of these costs from your former employer.

Mitigating by continuing to work for the employer

Issues of proper mitigation also arise in constructive dismissal cases.  If, for example, the employer significantly reduces your salary or demotes you to a lower position, your employer may claim that the most effective form of mitigation consists of remaining in your former lower position for the length of the reasonable notice period.  When an employee is entitled to walk away in a constructive dismissal matter is a difficult one, requiring specialized advice from an employment lawyer.

We are here to help: Consult one of our experienced employment lawyers at Raven, Cameron, Ballantyne and Yazbeck LLP if you are considering making a claim for wrongful dismissal. 

 [The following information applies to non-unionized employees. This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On December 11, 2014, Lancaster House is holding its annual Toronto Labour Arbitration conference, with workshops taking place before and after. David Yazbeck will be acting as the Union-side Co-chair for the conference and will participate as a moderator on a number of panels. Andrew Astritis will be speaking as union counsel on the panel dealing with family status discrimination.

Lancaster House is a leader in providing information on labour, employment and human rights law. Both Mr. Yazbeck and Mr. Astritis have participated in Lancaster House activities before. 

Raven, Cameron, Ballantyne & Yazbeck is pleased to announce that David Yazbeck has been appointed to a working group established by the CSA Group to develop and publish a whistleblower guideline for Canada. The CSA Group (formerly the Canadian Standards Association) is a world leader in establishing standards in a variety of areas. Recently, CSA Group, together with the Bureau de normalisation du Quebec, established a national standard of Canada in relation to psychological health and safety in the workplace.

David Yazbeck is one of the leading practitioners in the area of whistleblower law. He is one of many experts or interested persons who have been appointed to the CSA Group working group to establish a whistleblower guideline.

On April 23, 2013 the Public Service Labour Relations Board (PSLRB) upheld the Public Service Alliance of Canada’s complaint against the Treasury Board and Canada Border Services Agency (CBSA). The PSLRB found that the Treasury Board and CBSA violated the statutory freeze on terms and conditions of employment by terminating a long-standing practice of granting union officers full-time union leave with pay. This important decision clarifies the law on the statutory freeze period in the federal public sector and establishes the PSLRB’s approach to the issue of the time limits for making statutory freeze complaints. The case was argued by Andrew Raven with assistance from Dayna Steinfeld of Ravenlaw.

We are proud to introduce Ravenlaw’s new blog, Writing for Working People! Our firm has over 125 combined years of experience representing employees and unions in all aspects of labour and employment law. We have specialized expertise in a variety of areas, including federal public service employment, wrongful dismissal, human rights, administrative law, judicial review, and disability benefits. This blog is part of a new effort to share the benefit of that expertise with our clients and the community through our new Ravenlaw website. We have also posted the first group in a series of articles providing general legal information on topics in our areas of expertise.

On Writing for Working People, we will be providing regular updates and commentary on issues that impact workers’ rights, including: recent court decisions, changes to labour and employment-related legislation, and other legal and political topics affecting unions and workers across the country. Please check back regularly for the latest posts!

On May 2, 2013, James Cameron and Andrew Astritis each presented at the 2013 Accommodation Law Conference in Ottawa, sponsored by Labour Law Online.ca, the Centre for Labour-Management Development.  Their presentations addressed Workplace Policies and the Duty to Accommodate, Discipline, Discharge and the Disabled Employee, Accommodating Family Status, Disabilities requiring special Accommodation, as well as a host of other issues:
http://labourlawonline.ca/main.jsp?p=seminar_desc&seminarid=185&bndid=3&st=3