Stuck With Employment Matter?
You’ve come to the right place. If you are involved in an employment dispute or face an adverse action by your employer, an employment lawyer can help.
Employment lawyers protect the rights of employees and determine violations of federal and state anti-discrimination and harassment laws, and employment agreements.You’ve come to the right place. If you are involved in an employment dispute or face an adverse action by your employer, an employment lawyer can help.
Employment lawyers protect the rights of employees and determine violations of federal and state anti-discrimination and harassment laws, and employment agreements.
WHY EMPLOYMENT LAWYER ARE NEEDED?
No one employee can stick their head up and complain without fear of retaliation. Anyone in any workplace knows how that works in the face of staggering amounts of illegal retaliation. lawyers are needed,” To make worker right real and to give them the courage to stand up in the future”.
Practice Areas:
Wrongful Dismissal
Fair Severance or Pay In lieu of Notice
Constructive Dismissal
Reprisal and Retaliation
Dispute involving Benefits, Overtime and Wages
Prenuptial agreement
Employment Agreement Review
Employment Insurance
Sexual Harassment
Wrongful Dismissal
Rights greater than ESA notice of termination, termination pay, severance pay lies in Common Law.
The rules under the ESA about termination and severance of employment are minimum requirements. Some employees may have rights under the common law or other legislation that give them greater rights than notice of termination (or termination pay) and severance pay under the ESA, because such rights generally cannot be enforced under the ESA, some employees may choose to sue an employer in a court for “wrongful dismissal” or pursue other options.
Employees should be aware that they cannot sue an employer for wrongful dismissal and file a claim for termination pay or severance pay with the ministry for the same termination or severance of employment; an employee must choose one or the other. Employees may wish to obtain legal advice concerning their rights.
The basic principle in awarding damages for wrongful dismissal is that the terminated employee is entitled to compensation for all losses arising from the employer’s breach of contract in failing to give proper notice. The damages award should place the employee in the same financial position he or she would have been in had such notice been given: Sylvester v. British Columbia. In other words, in determining damages for wrongful dismissal, the court will typically include all of the compensation and benefits that the employee would have earned during the notice period.
Damages for wrongful dismissal may include an amount for a bonus the employee would have received had he continued in his employment during the notice period, or damages for the lost opportunity to earn a bonus. This is generally the case where the bonus is an integral part of the employee’s compensation package.
Fair Severance or Pay In Lieu Of Severance
Many employers provide severance packages to employees who are laid off. These packages often give employees about to lose their position much-needed financial and medical insurance support for a certain period of time. However, depending on the terms of the particular severance agreement, a person may be waiving legal rights they otherwise have. Having a Lawyer review your severance agreement before you sign it may be critical for protecting your rights.
Negotiation Severance Agreements
When receiving a severance agreement, an employee simply sign the agreement, and wrongly assume that they are “lucky” to receive the package. However, in many cases, not only is this agreement not the best possible one an employee can receive, but may prevent them from taking legal action that they could otherwise have pursued. In fact, in many cases, employees should be considering taking one of the following actions:
- A person who is receiving a severance package might actually have been illegally fired due to discrimination or had the terms of a Contract are breached. In these situations, an employee should consider contesting an agreement and possibly pursuing other legal action.
- Negotiating – many employees feel as if they have no power in negotiating the terms of their agreement. However, this is not necessarily the case. From blatantly unfair terms to using your leverage in not being legally bound to accept such an agreement, there are many ways in which a Lawyer might be able to negotiate your agreement.
If you are an employee who was terminated and offered a severance package, taking legal action might be in your best interest.
Constructive Dismissal
What is constructive Dismissal? The phrase “constructive dismissal” refers to a situation where, while an employer has not expressly terminated an employee, the employee alleges that the employer’s actions amount to a repudiation of his or her employment contract. It arises when an employer’s conduct evinces an intention to no longer be bound by the employment contract. The Canadian courts have taken a flexible approach in determining whether an employer’s conduct evinced an intention to no longer be bound by the contract: Potter. Court have identified 2 approach
- In the first, the court identifies an express or implied term that has been breached and then determines whether the breach was sufficiently serious to constitute constructive dismissal.
- In the second, the court considers whether the employer’s conduct more generally shows that the employer intended not to be bound by the contract. The second approach permits the court to find that an employee has been constructively dismissed without identifying a specific fundamental term of the employment contract that has been breached where the employer’s treatment of the employee makes continued employment intolerable.
An employee who is successful in establishing that a constructive dismissal has occurred would effectively trigger his or her termination entitlements under a contract of employment or, absent a contract with a valid termination provision, at common law.
What is Temporary Lay-off?
Employment Standards Act legislation in Ontario and the Canada Labour Code in Canada, provides employers with the ability to temporarily lay off an employee without triggering a dismissal for purposes of such legislation. Where an employee remains on layoff beyond the maximum permitted duration for a temporary layoff, the layoff will be considered a termination and will trigger the employee’s statutory entitlements to pay in lieu of notice of termination (and, where applicable in Ontario and under the Canada Labour Code, severance pay).
ESA and Canada Labour Code may provide comfort to the employers that they are not running afoul to the legislation. it will, not protect an employer from potential claims of constructive dismissal, except where an employee has an employment contract that specifically confers on the employer a right to temporarily lay off.
At common law, the risk will remain that a laid-off employee may allege that, by having been sent home without pay, their employer has repudiated or fundamentally breached their employment agreement.
Constructive dismissal claim arising from a layoff will also likely depend on: (a) whether any benefits or payments are continued by the employer during the layoff period; (b) the duration of any layoff; and (c) how the need for the layoff is communicated to the employee.
Dispute involving Bonuses, Benefits, Overtime and Wages:
Benefits can include retirement benefits as well as insurance plans (health, dental, life, etc.), daycare and tuition reimbursement plans, sick leave, and vacation (paid and non-paid).
Pension standards deal more exclusively with the arrangement of funds to provide individuals with 11
economic support when they are no longer earning a regular income from employment.
Benefits can include retirement benefits as well as insurance plans (health, dental, life, etc.), daycare and tuition reimbursement plans, sick leave, and vacation (paid and non-paid). Pension standards deal more exclusively with the arrangement of funds to provide individuals with 11
economic support when they are no longer earning a regular income from employment.
Damages for wrongful dismissal may include an amount for a bonus the employee would have received had he continued in his employment during the notice period, or damages for the lost opportunity to earn a bonus. This is generally the case where the bonus is an integral part of the employee’s compensation package.
Workplace Discrimination and Harassment:
Law prohibits employers from making job decisions based on an employee’s or applicant’s race, skin color, national origin, sex, religion, disability, genetic information, or age.
Grounds for Discrimination
- Race
- National or Ethnic Origin
- Color
- Religion
- Age
- Sex
- Sexual Orientation
- Gender Identity or Expression
- Marital Status
- Family Status
- Disability
- Genetic Characteristics
- A Conviction for Which A Pardon Has Been Granted Or A Record Suspended
The Ontario Human Rights Code protects people from discrimination under the ground of age. The Code defines age as 18 years or older. However, persons age 16 or older are also protected from discrimination in housing if they are not living with their parents.
Direct discrimination
Some discrimination can be very obvious called as direct discrimination.
For example:
- An employer won’t hire women who wish to start a family. This is discrimination based on sex and family status.
Indirect discrimination
This is discrimination that occurs through another person or organization. For example, companies asking their managers not to hire employee from some particularly ethnic background. The company is using the manager to carry-out the discrimination.
Constructive discrimination
Sometimes a rule or practice that is applied to everyone in the same way might affect one group of people differently and can lead to unequal treatment. This is called constructive discrimination. Here are some examples:
- A building has stairs at its entrance and this is the only way to get in or out of the building. This can be discrimination against people who use wheelchairs and need a ramp instead of stairs.
- An employer has a dress code or uniform that requires hats. This can be discrimination against people who wear hijabs, turbans, or other religious head coverings.
Harassment happens when someone shows a vexatious (which means distressing or annoying) pattern of doing or saying something based on a person’s disability that they know, or ought to know, is unwelcome.
Example of Harassment: The Ontario Court of Appeal found that when a woman suddenly lost her hearing, her employer subjected her to a “campaign of abuse” that included “publically belittling, harassing and isolating [her] in ways relating to her disability.” The Court also found that in addition to being denied any accommodation of her disability, the woman’s employer also “took specific steps to increase the difficulties she faced as a result of her not being able to hear.” The Court awarded damages for breach of the Code.
Harassment could include:
- Slurs, name-calling or pejorative nicknames based on disability
- Graffiti, images or cartoons depicting people with disabilities in a negative light
- Comments ridiculing people because of disability-related characteristics
- Intrusive questioning or remarks about someone’s disability, medication, treatment or accommodation needs
- Singling out a person for teasing or jokes related to disability
- Inappropriately disclosing someone’s disability to people who do not need to know
- Repeatedly excluding people from the social environment, or “shunning”
- Circulating offensive material about people with disabilities at an organization by email, text, the Internet, etc.
Reprisal and Retaliation
It is against the Code for a person to be punished or threatened with punishment because they try to enforce their rights under the Code (for example, by making a complaint). This is called reprisal (or “payback”).
Protection from retaliation in compulsory to protect the employee otherwise the laws prohibiting harassment and discrimination would be very difficult to enforce. After all, if an employee could be fired for making a complaint, very few employees would be willing to report problems. The Supreme Court has issued a series of decisions in retaliation cases that side with employees.
If you file a lawsuit for retaliation, you’ll have to prove three things:
- You engaged in a protected activity.
- Your employer took action against you.
- There is a causal link between your activity and your employer’s action (in other words, your employer took action against you because of your activity).
Employment Agreement Review
If the agreement you have is a binding contract it can be enforced either through an arbitration clause or in court.
Maximum dispute is with respect to bonuses, commission, salary, stock plan participation, non-compete and cause for termination and length of employment. If your agreement provides for arbitration or if your employment is with a company in the financial industry, it is likely that arbitration will be required to enforce the agreement.
If you currently have an employment agreement with a non-compete clause or language covering the non-use of your employer’s confidential or proprietary information, before accepting new employment it would be a good idea to have a lawyer review the agreement to find out if your new employment may be considered a breach of the current agreement.
if you receive a letter or court papers asserting that you have breached a non-compete clause or a confidentiality clause see the lawyer for the legal advice.
Employment Insurance
Individuals can be denied government employment insurance benefits.
- if you voluntarily left your job without just cause
- if you were dismissed for just cause.
- if you are unemployed because you were on strike.
You will be only entitled to EI regular benefits if you:
- were employed;
- lost your job through no fault of your own;
- have worked for the required number of hours since your last EI claim;
- are ready, willing and capable of working every weak day; and
- are actively looking for work?
If Service Canada denies EI benefits, or does something such as ordering that EI benefits received are to be repaid, or sends a warning letter, or imposes a penalty of any kind, you should contact an employment lawyer who specializes in EI disputes.
Sexual Harassment:
Sexual harassment, a form of gender discrimination, in the workplace it is prohibited by Ontario Law, and federal laws. While women are most frequently the victims of sexual harassment.
EXAMPLES OF SEXUAL HARASSMENT
The law prohibits inappropriate or unwelcome physical contact, including touching, kissing, hugging, standing too close or intentionally brushing up against a person, sexually explicit or suggestive comments, jokes, teasing, or innuendo, commentary or questions about your sex life, body, or clothing, inappropriate “complements” about looking good or other physical characterizes, verbal abuse or derogatory comments of a sexual or gender-specific nature, or staring, leering, whistling, or obscene gestures, discussion of sexual exploits, lewd behavior, name-calling or displaying, posting, or circulating in the workplace emails, pictures, cartoons, or other written or graphic material of a sexually-explicit, demeaning, or obscene nature, and the use of threats, coercion or promises of benefit to obtain sexual favors among many other inappropriate behaviors.
UNLAWFUL RETALIATION or REPRISAL
If an employee makes a complaint about being sexually harassed, it is illegal for the employer, its managers, supervisors or rank and file employees to retaliate against you. Unlawful retaliation can involve discharge, suspension, discipline, change of schedule, denial of a promotion, cut in pay or change in responsibilities or other terms and conditions of employment.
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