willson lewis llp e mployment l aw: h iring, f iring, and e verything in b etween s atisfied c...
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Willson Lewis LLP
EMPLOYMENT LAW:
HIRING, FIRING, AND
EVERYTHING IN
BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!
Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property
disputes, and collections
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com
Willson Lewis LLPBiographies
CATHERINE E. WILLSON, B.A., LL.B., PARTNERA longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding partner of Willson Lewis LLP, and has established a successful practice in employment law, civil litigation, equine, collections, construction, and family law. She was an executive member of the Canadian Bar Association (Ontario) – Civil Litigation Section. She is also a member of the Advocates Society, the Association of Trial Lawyers of America, and the Toronto Construction Association. Catherine is both the Chairman of the Risk Management Committee and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is the legal expert for the Canadian Federation of Independent Business (Member Services) and is a regular speaker at legal and business conferences, an instructor at the University of Guelph, and writes on legal issues for several national publications.
CRAIG A. LEWIS, B.A., LL.B., PARTNERHas been practicing employment law since being called to the Bar. He received his Bachelor of Laws degree from Queen’s University and was admitted to the Law Society of Upper Canada in 1993. A member of the Ontario Bar Association, Advocates Society, Canadian Association of Black Lawyers and the Metropolitan Toronto Lawyers Association. Craig has been a speaker at Ontario Bar Association seminars concerning advocacy matters and has litigated at all levels of Court in the Province. In his employment practice, Craig has prepared employment contracts and independent contractor agreements. He has provided advice on hiring, terminations packages and wrongful dismissal claims. He has assisted clients in drafting employment policy manuals. Craig has extensive experience in responding to human rights complaints.
Willson Lewis LLP Biographies
MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATEMarlene was called to the Ontario Bar in 1993, having received her LL.B. from the University of Western Ontario and completing her articles at one of the oldest law firms in Canada. Marlene’s practice includes civil, matrimonial and construction lien law. Marlene has trial experience at all levels of Court in the Province of Ontario, and she is a member of the Ontario Bar Association and the Women’s Law Association of Ontario. Marlene is a frequent contributing writer of legal information articles for the National Credit News.
CHRISTOPHER ROBERTSON, B.A., LL.B. - ASSOCIATEChristopher is an associate with Willson Lewis LLP and was called to the Bar in 2003, Christopher's practice focuses on employment-related litigation and commercial disputes. He has successfully appeared at the Ontario Superior Court of Justice on the Commercial List and the Ontario Court of Appeal. He has also appeared before various Boards and Tribunals including the Ontario Labour Relations Board, the Ontario Human Rights Tribunal, the Licence Appeals Tribunal, the Health Professions Appeal and Review Board, as well as professional regulatory agencies.
AIMEE COLYER, B.A., LL.B. – ASSOCIATEAimee was called to the Ontario Bar in 2007. After completing her articles with Willson Lewis LLP, Aimee practised as an associate with two large Bay Street firms. In 2009, she returned to the firm to practice family law and civil litigation. Aimee is a member of the Ontario Bar Association.
dispute resolution court actions, applications,
injunctive relief commercial disputes personal disputes mediation and arbitration
CIVIL LITIGATION
EMPLOYMENT LAW
employment contracts and consulting agreements
wrongful dismissal conflicts in the workplace termination packages human rights
EExperienced counsel practising in:xperienced counsel practising in:
construction projects (general contract/project management/design build)
preparation of construction contracts tender advice and resolution of disputes negotiation and litigation of construction
disputes including lien actions and breach of trust issues
CONSTRUCTION LAW
FAMILY LAW
divorce, separation, custody, support, property issues
separation agreements cohabitation and marriage contracts settlement negotiation and mediation
EExperienced counsel practising in:xperienced counsel practising in:
dispute resolution, litigation purchase and sale agreements,
boarding agreements and leasing agreements
co-ownership agreements and syndications
taxation
EQUINE LAW
EExperienced counsel practising in:xperienced counsel practising in:
The
ActIncome Tax
The
Act
Canada Pension Plan
The
Act
EmploymentInsurance
The
Act
Employment
Standards
The
Act
WorkplaceSafety &Insurance
The
Act
Occupational
Health &
Safety
EMPLOYMENT RELATED EMPLOYMENT RELATED STATUTESSTATUTES
EMPLOYMENT RELATED EMPLOYMENT RELATED STATUTESSTATUTES
EMPLOYER LIABILITY
TheCanada Labour Code
HIRING – EMPLOYMENT HIRING – EMPLOYMENT CONTRACTSCONTRACTSHIRING – EMPLOYMENT HIRING – EMPLOYMENT CONTRACTSCONTRACTS
APPLICATIONS & RECRUITING
DO NOT: Ask about age, date of birth,
hair oreye colour, weight or height
Ask about religious affiliation Ask about Canadian
citizenship Ask for ‘maiden name’ or
greetingidentification, i.e. Mr. or Miss.
JOB OFFERSJOB OFFERSJOB OFFERSJOB OFFERS
Avoid making a verbal job offer with different written terms later
Do advise that the offer is forthcoming and send itin writing
Do give time for the employee to review
Do encourage the employee to get legal advice
Do get signature before work starts
EMPLOYMENT EMPLOYMENT CONTRACTSCONTRACTS
EMPLOYMENT EMPLOYMENT CONTRACTSCONTRACTS
CONSIDER:
Indefinite term or specificproject or task
Compensation including bonuses
Describing duties and specifyingability to change
Describing the probationary nature of theposition and ability to dismiss without notice
Providing for Termination
• Ontario Employment Standards Act, 2000 and related provincial statutes
• Common law (except Quebec)
EMPLOYMENT EMPLOYMENT CONTRACTSCONTRACTS
CONSIDER: Inserting a non-competition clause
– temporal, geographical, task specific restrictions
Inserting a non-solicitation clause– customers, employees
Inserting a confidential information clause
Ensure that adequate consideration isprovided for the contractual relationship
EMPLOYEE vs. EMPLOYEE vs. INDEPENDENT INDEPENDENT CONTRACTORCONTRACTOR
Employee– Income tax, CPP, EI – deductions and remittances– T4’s– Vacation pay, overtime, holiday pay– Termination pay
Independent contractor– No obligation on principal to pay income tax, CPP, EI – just GST,
HST– Contractor must remit taxes– Little or no notice of termination– No EI– Contractor can deduct his or her business expenses against
income– Relationship built on contract
TESTS – INDEPENDENT TESTS – INDEPENDENT CONTRACTORCONTRACTOR
TESTS – INDEPENDENT TESTS – INDEPENDENT CONTRACTORCONTRACTOR
Control Test
the degree of direction and control over a worker
Ownership of Tools
Chance of Profit
Risk of Loss
Organization Test
is an individual’s work an integral part of business operations of the company?
COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:
Require a written contract for services executed by the contractor.
Include a termination provision in the contract with notice of no less than an employee’s entitlement under the Employment Standards Act – do not make reference to the Act in the contract.
Make the contract for a definite term or task.
The contract should indicate that the person is an independent contractor and not an employee.
The contract should state that the contractor is responsible for paying all Government remittances to the appropriate agencies. It is a good idea to obtain an indemnity from the contractor to pay remittances required by Government agencies in the future.
COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:
Clearly define the scope of authority provided to the contractor – for example, the contractor may not enter into contracts on behalf of the company.
The contract should indicate that the contractor is free to provide services to others.
The contract should contain a confidential information clause.
Ensure that adequate consideration is provided for the contractual relationship.
Require invoices for services from the contractor.
COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:
Clearly sever a prior employment relationship before entering into a contractual relationship.
Consider the application of relevant taxes – GST, HST, etc.
Require the contractor to obtain a G.S.T. number and to charge or remit G.S.T. to the Government.
Where transportation services are provided, specify that the contractor is responsible for the vehicle and all of its expenses.
Permit the contractor to hire employees or subcontractors.
COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:
Include a non-solicitation/anti-competition clause in the contract
Refer to the contractor as a commissioned sales person or speak of commission sales or salaries in the contract.
Provide T4 slips.
Exert control over the contractor’s hours of work, vacation time, or subject the contractor to company supervision or performance evaluations.
Allow the contractor to use company stationary or business cards.
COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:
Supply a permanent workstation or office space or encourage the contractor to use company equipment or company staff as assistants.
Restrict the number of clients that the contractor can serve.
Prevent the contractor from soliciting his/her own clients or set quotas for the contractor.
Require the contractor to comply with company policies and discipline procedures.
Provide medical or disability benefits or vacation pay.
EMPLOYEE MANAGEMENT EMPLOYEE MANAGEMENT DO’SDO’S
EMPLOYEE MANAGEMENT EMPLOYEE MANAGEMENT DO’SDO’S
DO: Have regular performance reviews
Create a paper trail
Show the level of performance required
Communicate your expectations
Give clear, prompt and consistent instruction
Give written instruction
Give warning memo
Provide training
DUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATE
DO: Listen to the Employee
Work with the Employee
Make business needs known
Ask for medical information from Employee’s physicians
Tolerate absenteeism that is disability related
Accept a modified work schedule that is reasonable
Be sensitive to Employee concerns
Keep medical information confidential – Need to Know Only
DUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATE
DON’T: Harass the employee for medical information
Prefer employer’s opinion over medical opinion
Send the employee to a company doctor, unless exceptional circumstances
Treat the employee as if she/he is malingering
Discipline for disability related absence
Intimidate or bully the employee
Refuse to deal with the employee’s lawyer
RELEVANT LEGISLATION RELEVANT LEGISLATION RE: WORKPLACE CONDUCTRE: WORKPLACE CONDUCT
Occupational Health and Safety Act, Bill 168
Currently, employers who contravene the Act are guilty of an offence and face fines pursuant to section 66. Bill 168 amends section 1 (1) to include the following definitions:"workplace harassment" means engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome;"workplace violence" means, (a) the exercise of physical force by a person against a worker, in a workplace, that causes or could cause physical injury to the worker, (b) an attempt to exercise physical force against a worker, in a workplace, that could cause physical injury to the worker, (c) a statement or behaviour that it is reasonable for a worker to interpret as a threat to exercise physical force against the worker, in a workplace, that could cause physical injury to the worker. The Bill will require employers with more than 5 employees to develop a program to implement a workplace violence and harassment policy. The program must include measures for workers to report incidents of workplace harassment and set out how the employer will deal with incidents and complaints of workplace harassment.The Bill comes into force on June 15, 2010.
Occupational Health and Safety Act,
Bill 168
Bill 168 outlines many requirements for Ontario employers including: Specific assessments to measure the risk of workplace violence Measures to control the risks identified in these assessments including procedures
for reporting violence, getting immediate assistance when violence is likely to occur, and guidelines for conducting investigations and handling complaints
Written and posted policies and procedures addressing these risks Employee training in these policies and procedures Reasonable steps to prevent domestic violence in the workplace Disclosure of information about employees with a history of violent behaviour Continued conduct of assessments to ensure the policies protect employees
Penalties for failed compliance include personal fines up to $25,000 or imprisonment for a term of not more than twelve months or both. Corporations may be fined up to $500,000.
An employee has the right to refuse to work if the employee believes that he/she is in danger of becoming a victim of workplace violence.
DISMISSALDISMISSALDISMISSALDISMISSAL
What is Constructive Dismissal? Demotion
Unilateral reduction in salary
A hostile work environment (problem managers)
Geographic transfer
Change in commission structure or method of remuneration
DISMISSALDISMISSALDISMISSALDISMISSAL
Just Cause v. Without CauseJust Cause:
No notice or pay in lieu required
Requires serious misconduct (i.e. theft) by employee, or gross incompetence or insubordination
Warnings must be issued
A reasonable opportunity to explain, or improve, must be given
Without Cause:
Notice or pay in lieu required pursuant to Employment Standards Act, or Canada Labour Code; and common law
The Employment Standards Act, 2000
No termination without notice
54. No employer shall terminate the employment of an employee who hasbeen continuously employed for threemonths or more unless the employer,
(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or
(b) has complied with section 61. 2000, c. 41, s. 54.
The Employment Standards Act, 2000
Employer notice period
57. The notice of termination under section 54 shall be given,
(a) at least one week before the termination, if the employee’s period of employment is less than one year;
(b) at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years;
(c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years;
(d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;
The Employment Standards Act, 2000
Employer notice period (Continued)
(e) at least five weeks before the termination, if theemployee’s period of employment is five yearsor more and fewer than six years;
(f) at least six weeks before the termination, if the employee’s period of employment issix years or more and fewer than seven years;
(g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or
(h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.
The Employment Standards Act, 2000
Pay instead of notice
61. (1) An employer may terminate the employmentof an employee without notice or with less noticethan is required under section 57 or 58 if the employer,
(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.
The Employment Standards Act, 2000
Entitlement to severance pay
64. (1) An employer who severs an employmentrelationship with an employee shall payseverance pay to the employee if the employeewas employed by the employer for five years or more and,
(a) the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
(b) the employer has a payroll of $2.5 million or more.
The Employment Standards Act, 2000
Calculating severance pay65. (1) Severance pay under this section
shall be calculated by multiplying the employee’s regular wages for a regular work week by the sum of,
(a) the number of years of employment the employee has completed; and
(b) the number of months of employment not included in clause (a) that the employee has completed, divided by 12.
Canada Labour CodeDIVISION X
INDIVIDUAL TERMINATIONS OF EMPLOYMENT
Notice or wages in lieu of notice230. (1) Except where subsection (2) applies, an employer
who terminates the employment of an employee who has completed three consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, give the employee either
(a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or
(b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice.
Canada Labour Code
DIVISION XISEVERANCE PAY
Minimum rate235. (1) An employer who terminates the employment of an
employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of
(a) two days wages at the employee’s regular rate of wages for his regular hours of work in respect of each completed year of employment that is within the term of the employee’s continuous employment by the employer, and
(b) five days wages at the employee’s regular rate of wages for his regular hours of work.
REASONABLE NOTICEREASONABLE NOTICEREASONABLE NOTICEREASONABLE NOTICE
Employment Standards Act is a minimum only
Ball park/range of notice
Factors – Age, Seniority, Length of Employment, other issues
Month per year maxim – Right or Wrong
Bad faith damages
Benefits & Pension
Disability Plan Issues
HOW TO TERMINATEHOW TO TERMINATEHOW TO TERMINATEHOW TO TERMINATE
Written Notice
Private Meeting, Little Said
Respectful
Make Notes
Securing Confidential Information and Property
Record of Employment in 5 days
Termination Pay due in 7 days or next payroll
Job Placement Assistance
MANDATORY MANDATORY RETIREMENTRETIREMENTMANDATORY MANDATORY RETIREMENTRETIREMENT
As of December 12, 2006,there is no mandatory retirement at age 65
in the Province of Ontario
WHAT DOES THIS MEAN?
Willson Lewis LLP
EMPLOYMENT LAW:
HIRING, FIRING, AND
EVERYTHING IN
BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!
Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property
disputes, and collections
1183 King Street West, Suite 200, Toronto, Ontario M6K 3C5Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com