As an employee, work is a significant part of your identity. Difficulties at work, including the threat or loss of employment, can raise legal, practical, financial, and emotional consequences.
Our team of bilingual employment lawyers are here to listen and provide competent, timely, and cost-effective advice and representation.
We provide advice and representation on a full range of employment law issues, including:
- Wrongful dismissal
- Severance and termination package review
- Constructive dismissal
- Human rights and discrimination
- Employment contracts review and negotiation
- Employment benefits, including maternity and parental leave
- Employment status: employee or independent contractor
- Harassment, bullying, and violence in the workplace
We assist and represent individual non-unionized employees at every step of the employment relationship —from contract review and negotiation when starting a job to representing an employee when there are workplace issues and after the termination of employment. Our employment lawyers in Ottawa and Kingston also represent employees across Quebec, Nunavut, and Manitoba, as well as those who are in federally regulated workplaces.
EMPLOYMENT LAW FAQ
An employment contract is an agreement between you and your employer outlining the conditions under which you will provide work in exchange for compensation. An employment contract does not have to be in writing, and even if you don’t have a written contract, there are rules governing your employment. Having a written employment contract can make resolving employment-related disputes easier. If you are being asked to sign an employment contract, an employment lawyer in Ontario can help you understand the terms and ensure that your employer is not attempting to limit the compensation or rights you might otherwise be entitled to.
An employee is an individual who provides work for their employer. The employer is the one who determines the work to be performed, how much the individual will be paid, and where the work is to be done. The employer usually has the right to suspend, discipline, or dismiss an employee. Employees are covered by the relevant legislation in their province/territory.
This is unlike an independent contractor who is in business for themselves. They usually determine how, when, and where their work is to be performed and cannot generally be disciplined by the businesses they work with. They are also free to work with multiple businesses at the same time. It is important to note that independent contractors are not covered by the relevant employment legislation in their province/territory, but they are afforded protection under human rights legislation.
Because employment legislation does not apply to independent contractors, employers will sometimes try and characterize employees as independent contractors. In Ontario, employers are not allowed to mischaracterize employees as independent contractors to circumvent the legislation. Any attempt to do so can result in penalties. Even if you and a business have a contract or agreement characterizing you as an independent contractor, this agreement alone does not make you an independent contractor. What matters is the actual relationship between you and the business. Contact one of our employment lawyers if you believe that your employer is attempting to mislabel you as an independent contractor, and they can help ensure that your employment is correctly characterized and protected under the governing legislation.
Your rights as an employee are generally protected under federal, territorial, or provincial legislation and via common law. Although many of these statutes serve a similar function by outlining the rights and responsibilities of employers and employees, the names and specifics of the legislation will vary by province/territory, so it is important to consult the relevant statutes for the province or territory in which you will be working.
Employees in Ontario are covered under the Employment Standards Act, SO 2000, c 41 (“Employment Standards Act”), which sets the minimum requirements for compensation, rest periods, holidays, termination notices, and severance pay. Nunavut’s Labour Standards Act, R.S.N.W.T. (Nu.) 1988, c. L-1, s. 2, Quebec’s Act Respecting Labour Standards, CQLR c N-1.1, and Manitoba’s Employment Standards Code, CCSM, c E110, represent the major employment legislation for those regions. If you are employed in the federal public sector or work for a Crown corporation, your employment relationship is generally dictated by federal legislation rather than provincial or territorial ones, and you should consult the Canada Labour Code, RSC 1985, c L2, or the Public Service Employment Act, SC 2003, c 22, ss 12, 13 as these govern instead of provincial/territorial legislation.
In addition to the statutes listed above, most provinces/territories have enacted human rights and occupational health and safety legislation that may provide additional protection. These acts are available online, and it is a good idea to familiarize yourself with them to ensure that your employer is complying with their legal responsibilities.
It is important to note that statutes like the Ontario Employment Standards Act often represent the minimum requirements employers must adhere to. With the assistance of an employment lawyer, you may be able to obtain additional compensation.
There are many ways that an employment relationship can come to an end. Some of the most common ways for the relationship to end include:
Termination without cause: In Ontario, an employer is not required to keep you employed. They can decide to terminate the employment of any employee and are not required to have or give a reason for terminating the employment. This is called a termination of employment without cause. However, they are required to provide you with written advance notice of termination or termination pay in lieu of notice when you are terminated without cause. The amount of notice you are entitled to will vary depending on the length of your period of employment and what is stated in your employment contract.
Termination with cause: In exceptional circumstances, employers may be able to terminate your employment without notice or termination pay if there is a reason for termination. This can only occur in cases where an employee has engaged in willful misconduct, disobedience, or willful neglect of duty that is not trivial and has not been condoned by the employer. Even if an employer has told you that they are not required to provide you with notice because they are claiming they have cause to terminate your employment, it is important to speak with an employment lawyer to determine whether they are justified in doing so.
Constructive dismissal: If an employee quits or resigns, they are not entitled to notice or pay in lieu of notice. A constructive dismissal occurs when an employer harasses an employee to the point of them not being able to continue to work, forcing them to resign. An ultimatum to quit or be fired would also be a constructive dismissal. It can also occur when an employer unilaterally makes changes to your conditions or terms of employment, i.e., suddenly changing your hours, pay or work location. In these circumstances, even if you quit or resign, you may still be able to claim that you were forced to do so by your employer’s actions and so were constructively dismissed. If you were constructively dismissed, then you are entitled to the same things as you would be if your employer terminated your employment without cause. Given the legal complexity of constructive dismissal cases, it is best to contact a lawyer for advice if you believe that you have been constructively dismissed.
Wrongful dismissal: Wrongful dismissal refers to when an employer terminates your employment without providing part or any of the notice or termination pay and does not have just cause. An employer might offer you a package, but you should have it reviewed before signing to make sure it contains everything you are entitled to receive. lf you have been dismissed, you should contact an employment lawyer to review the package (if any) offered to you and to discuss the next steps. These next steps could include filing a claim for termination pay or severance pay with the Ontario Ministry of Labour, suing your former employer, or filing a claim with an administrative tribunal.
The amount of notice required will depend on the length of time you have worked for your employer and what is in your employment contract.
The Ontario Employment Standards Act provides the floor or the minimum standards for payment of termination and severance damages. In Ontario, under the Employment Standards Act, your employer must give you a minimum amount of notice if you have worked for longer than three months. The amount the employer is required to give is laid out in the legislation.
If your employment contract does not contain a provision regarding notice, you will be entitled to reasonable notice. ‘Reasonable notice’ is a type of notice that was developed via the common law. Determining reasonable notice under these circumstances is a holistic approach that involves looking at the length of service, the character of the employment, your age, and your ability to obtain similar employment having regard to your experience, training, and qualifications. An employment law lawyer can assist you in determining how much reasonable notice you will be entitled to under the common law.
It is important to note that an employment contract can reduce your rights to the common law standard but may not reduce them below the standard set by the Employment Standards Act. In truly exceptional cases, usually reserved for very senior executives or professional athletes, a contract can also increase rights beyond those foreseen by the common law.
The Courts hold employers to a high standard in terms of drafting an employment contract. If a termination provision contracts out of the minimum standards of the Employment Standards Act, or if you do not have an employment contract, you may be entitled to a significantly larger compensation package. You should contact an employment lawyer if you feel as though your employer has not given you adequate notice prior to termination or if they have not provided you with termination pay in lieu of notice. Once they have given you notice, your employer is not allowed to alter your wages or any other condition of your employment and is still required to contribute to any benefits plan they may provide. Therefore, an employment lawyer may be able to assist you in obtaining the appropriate compensation for your situation.
If you are employed in other parts of the country, such as Quebec, Nunavut, or Manitoba, or fall under federal jurisdiction, please reach out to our employment lawyers in Ottawa, Kingston and Winnipeg to understand your rights upon termination.
A severance package is a term often used to refer to the package (including payments in lieu of notice), which includes money and/or benefits that your employer pays you when your employment is terminated without cause.
However, severance pay under the law is a specific payment meant to compensate for losses that result from the employment being severed, in contrast to termination pay which is required to be given in place of the required notice of termination.
Some scenarios where the employment relationship is considered to be ‘severed’ include where the employer dismisses or stops employing you, cases of constructive dismissal, permanent layoffs, or resignation.
In Ontario, to qualify for severance pay, your employment must have been severed, and you must have worked for the employer for five or more years. These years of employment do not have to be continuous. The employer must also have an annual payroll of $2.5 million or have severed the employment of 50 or more employees in a six-month period because all of the business has permanently closed. Recent changes to the common law in Hawkes v Max Aicher (North America) Limited, 2021 ONSC 4290 mean that the calculation of payroll for severance pay purposes is not limited to either Ontario or Canadian payrolls. Employers are required to pay severance pay within seven days after your employment is severed, or on what would have been your next regular payday, whichever is later.
If you believe that you are entitled to severance pay or your employer has not paid you the correct amount, an employment law lawyer can help ensure that you are obtaining the correct amount of severance pay and can assist you in resolving any disputes regarding severance pay in a timely manner.
If you are a federally regulated employee or work in Nunavut, Manitoba, or Quebec, please reach out to one of our employment lawyers who can provide specific information relating to your jurisdiction.
Losing your job can be an extremely stressful situation. Speaking with an employment law lawyer can help you determine your entitlements and next steps. An employment law lawyer can help you obtain any severance pay, termination pay, or common law pay in lieu of reasonable notice to which you may be entitled. Additionally, an employment law lawyer can represent you in court or before an administrative tribunal. Be sure to collect any documentation that you may have that relates to your employment, including employment contracts, job descriptions, and correspondences with your employer.
One of the ways to obtain relevant documents is through an Access to Information request. We can assist our clients with these requests and with complaints if requests are denied.
As an employee, you have the right to be free from harassment in the workplace, whether that harassment comes from an employer, a coworker, or a client. Employers are required by law to have policies and procedures in place to prevent and address workplace harassment and to review those policies annually. Employers are also required to investigate allegations of harassment and inform parties of the outcome of that investigation, including any corrective action taken. If you have experienced workplace harassment, an employment law lawyer can help inform you of your rights and represent you before a human rights tribunal.
Who should I turn to for assistance with worker’s compensation issues or health and safety questions?
Our employment lawyers are knowledgeable in the areas of provincial, territorial and federal workers’ compensation and occupational health and safety matters, including the Federal Government Employees Compensation Act (GECA), work refusals and workplace harassment. Please contact one of our employment lawyers to discuss your concerns.
Access to Information is useful in employment, workplace harassment or discrimination matters to gather relevant documentation. Our employment lawyers are experienced in the process; from the request to filing a complaint. Contact one of our lawyers to discuss the process and avoid delays.
The field of employment law covers everything from wrongful dismissals, severance package reviews, human rights violations, workplace accommodations, harassment complaints, and long-term disability claim disputes. To get the optimal outcome for your case, it is important to consult with a lawyer who specializes in this diverse field. Employment lawyers are knowledgeable about federal, provincial, and territorial laws and can assist you in ensuring that your rights as an employee are being respected. Employment lawyers can assist you at any step in the employment process, from helping you understand an employment contract, to settling workplace disputes, to ensuring that you have been properly compensated upon dismissal. Although hiring a lawyer can seem like a big expense, contingency agreements, where your lawyer’s fees will depend on the outcome of your case, are one way that hiring an employment lawyer can be made more affordable.
CONFERENCES AND WORKSHOPS
Lawyers from our firm regularly speak at professional conferences and give workshops to lawyers, communities groups or associations on various employment law issues. To find out more about presentations we can offer, please contact us.
If you would like to speak with one of our skilled lawyers about your employment issues, please contact us.