Employment Law

Employment Law demonstrates more than any other area of the law, except perhaps Family Law, the "Human" side of Law. Many people are proud of their work and are proud of what they do. Therefore, problems in the workplace become very personal problems.

The Litigation Lawyers in our law firm have extensive experience in dealing with these matters both on behalf of employees and on behalf of employers. Through acting both for plaintiffs and defendants our lawyers have a very balanced view of the law. We recognize that the loss of a job, whether for cause or by reason of restructuring or reorganization, often results in feelings of rejection and a loss of self-worth.

The Supreme Court of Canada has recognized that an employee is most in need of protection at the end of the employment relationship. Therefore, there should be sensitivity in the manner of termination of employment and in developing the package that may be offered to the departing employee.

When an employee behaves in a way that results in his termination for cause, such as stealing or competing with his employer, the employer will feel betrayed by that employee. In either case, there are far reaching consequences for the departed employee, the most obvious of which is financial.

The Waterous Holden Approach

In our law firm, we recognize that human resource issues are not problems, but are people with problems. They may be managers trying to maintain a safe and efficient workplace while at the same time maximizing productivity or they may be employees facing the loss of their livelihood. Each case has to be dealt with individually, based on the specific circumstances. We believe that both employers and employees should be properly advised to avoid a rash decision.

There are a number of areas in which workplace issues can arise. These include Human Rights issues, Employment Standards Act requirements, Workplace Safety and Insurance Act matters and Occupational Health and Safety concerns. In any of these areas, the employer may need to conduct an investigation to arrive at all of the facts and to develop an appropriate resolution. We have extensive experience on behalf of both employers and employees and can assist in all of these areas.

Termination of Employment

Employment is a matter of contract between the employer and the employee. In most cases, this contract is not in writing. The law of the Province of Ontario recognizes that there is an implied term in each contract of employment that it will not be terminated without the employee being given reasonable notice of termination. This is not job security as employers are free, subject to any written contracts of employment, to terminate an employee so long as proper notice is given and so long as there is no violation of the Human Rights Code.

There are three sources of the requirement of notice to be given to the departed employee. These determine the compensation to be given to the terminated employee in lieu of notice. The first is termination pay as defined in the Employment Standards Act, the second is severance pay as defined in that Act and the third the reasonable notice required by common law in force in the Province of Ontario. Termination pay is simply a week per year of service to a maximum of eight except in the first three years. Severance pay is an additional week per year of service provided the employee has been employed for five years and the employer has a payroll in excess of 2.5 million dollars. Termination pay and severance pay are in fact added together; however both are included within the common law requirement that an employer give an employee reasonable notice of termination of employment. Reasonable notice is not fixed by statute but is a product of the employee's length of service, degree of responsibility in the workplace, their age as well as a number of other factors which theoretically are a pre-estimate of the time required for that employee to find another job similar to the job that has been lost.

The courts have understandably sided with employees who have lost a job unless the case for cause is clearly made out. To clearly make a case, the employer must have properly documented the acts which give rise to the termination. For a single act to amount to cause, it must be a very clear indication that the employee doesn't care about his or her job and has acted in a way to show that the employee no longer wishes to work for this particular employer. This is common law, which is in fact judge-made law. Therefore, it is ever changing with the result that there are few hard and fast rules.

Harassment

Workplace harassment has become a very significant matter for both employers and employees. Often it is fellow employees and not just persons in authority who are harassing or bullying other employees. The result is significant cost to employers in absenteeism, reduced productivity, disability claims and a high turnover of employees. It is important for all to know that every person is entitled to be treated with civility and respect. This includes workers in their attitude towards their employers as well as employers and managers toward the employees they are managing.

Conclusion

The employment lawyers in our firm have been through this many times with both employers and employees and therefore are clearly attuned to issues and potential issues. Legal advice on the part of all sides is extremely important for there to be an orderly transition in the workplace in the event of the loss of employment. We do our best to maintain civility and respect in the course of the resolution of the problem in order that both sides can move forward having arrived at an appropriate solution.