Our Employment Law Services for Employers

Termination of Employment

In a termination package preparation meeting, a lawyer helps the employer draft the terms of a termination package (this is also sometimes called a Severance Package).

  • A termination package is an offer from the employer to the employee to sign a release in exchange for termination pay.
  • A release is a contract promising never to sue.

The most important term the lawyer will help the employer determine is the amount of notice (or pay in lieu of notice) the employer should give the terminated employee.

If the offer made to the employee is refused, the employee’s lawyer writes the employer a demand letter asking for more money. Here, the employer sometimes replies on its own or uses its lawyer to reply. In this regard, an employment lawyer will write back stating why the employee is wrong, and that the offer is fair and legal.

Thereafter, if further negotiation is unsuccessful, the employee’s lawyer usually files a “wrongful dismissal” lawsuit. In this regard, most claims are settled at mediation well before a trial. In fact, 93% of all lawsuits settle before trial.

Never trust a law firm website termination package or severance package calculator. They are just a marketing gimmick designed to entice you to come in for a consultation. None of the top employment law firms in Toronto use them.

If you would like to learn more, please contact us.

Severance is bonus compensation that must be paid to qualified employees (5+ years of seniority) whose employment is terminated. Click here for more.

Contrary to popular opinion, severance is not the same as termination pay, which is money paid to an employee in lieu of working notice of termination of employment.

If you would like to learn more, please contact us.

A constructive dismissal allows an employee to stop working and demand termination pay or sue for wrongful dismissal even though the employee was never terminated.

Constructive dismissal happens when an employee alleges his or her job or pay is changed significantly.

Constructive dismissal can also happen when an employee alleges he is treated so poorly that they cannot reasonably expect to return to work.

If you would like to learn more, click here, or please contact us.

Usually, people believe a “lay off” is an expression for downsizing, or losing a job or being terminated without cause.

However, a lay off is actually a legal term meaning temporary stoppage of work. It is a layoff if an employer gives no work to an employee for less than 13 weeks in the last 20 weeks (or 35 in certain circumstances). Then, if the employer hasn’t given the employee any work for over 13 weeks, the employee has been terminated and must be provided notice or termination pay in lieu.

If you would like to learn more, please contact us.

An employer may be liable to compensate an employee if the employee was terminated for a discriminatory reason, including because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

As well, the employer may be liable to compensate the employee for discrimination that happened before the termination and/or any harassment in the workplace by the employer or employee of the employer.

If you would like to learn more, please contact us.

Employees with very limited claims against their employer (less than $10,000) sometimes file a claim with an Employment Standards Officer at the Ontario Ministry of Labour. It is free and individuals do not need a lawyer.

The Ministry of Labour investigates complaints of unpaid wages, overtime and vacation pay, pay equity, leaves of absence (i.e. maternity leave), and rights upon termination, among others. After the Ministry has completed a complaint, it can order the employer to pay the employee (called an Order to Pay).

The Ministry of Labour, however, is extremely limited in the remedies it can award an employee. Unlike the courts, the Ministry cannot hear a wrongful dismissal case and it cannot order common law damages. For example, the Ministry can only order an employer to provide an employee up to $10,000 in wages. Conversely, the courts can order an employer to provide an employee 24 months or more of full compensation.

An employer with concerns regarding a Ministry of Labour complaint should contact an employment lawyer before responding to a claim.

In addition, Dutton Employment Law helps employers appeal fines or Orders to Pay made by an Employment Standards Officer at the Ontario Labour Relations Board.

If you would like to learn more, please contact us.

Wrongful dismissal, also sometimes called wrongful termination, unjust dismissal or wrongful discharge is when the employee alleges that the employer failed to give a terminated employee reasonable notice of his or her termination. Click here for more on wrongful dismissal. Or, please contact us.

In very rare cases, an employer can terminate an employee without notice, termination pay or severance if the employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, conduct prejudicial to the employer or wilful disobedience. It is extremely difficult to prove, however. Click here for more. Or, please contact us.

There are several legal issues to consider in regards to resignation:

  • Some employees must give notice before quitting. If not, it could be a “wrongful resignation”;
  • Most employees who quit are not entitled to any termination pay, severance or employment insurance (“EI”);
  • Some employers may be able to claim “constructive dismissal” and get termination pay, severance and EI even though they quit;
  • Sometimes a resignation is not really a resignation. The law recognizes that employees are entitled to take back such an important decision made in the heat of passion; and
  • Some employees can be prevented from doing certain things after quitting, including:
    • non-compete;
    • non-solicitation; and
    • non-disclosure.

If you would like to learn more, please contact us.

Restrictive covenants are clauses in employment contracts that prohibit an employee from doing certain things.

A non-competition clause prohibits employees from competing with their employer for a set period of time after the employee leaves the employer.

A non-solicitation clause prohibits employees from soliciting or dealing with customers of the employer. Non-solicitation usually also prohibits the employee from soliciting other employees to leave the employer.

Restrictive covenants are not always enforceable. Employers with concerns regarding restrictive covenants should contact an employment lawyer to advise whether a court would enforce it.

Dutton Employment Law regularly drafts restrictive covenants included in employment contracts on behalf of employers.

If you would like to learn more, please contact us.

Some employers provide employees regular benefits (i.e. dental insurance), and fringe benefits (i.e. a cell phone).

Employers have no legal obligation to provide benefits. However, if the employer does provide benefits, it must continue to do so, otherwise the employee can claim breach of contract or constructive dismissal and sue for damages.

In addition, if an employe is terminated, the employer must usually provide the employee the same benefits he or she would be owed during the notice period, or pay in lieu of.

If you would like to learn more, please contact us.

Hiring

New employees usually sign an employment contract before starting work. These contracts usually define the employee’s earnings, the employer’s policies, restrictive covenants such as non-competition or non-solicitation clauses and what happens in the event of termination.

If employees do not sign an employment contract, they are still under an employment contract, but that they and the employer are bound to the “common law” rather than defined terms and policies.

Usually, the most important t draft in the employment contract a termination clause that limits the employee to notice of termination according to the Employment Standards Act minimums.

Employers should insert a termination clause because then it prevents the employee from being entitled to notice upon termination according to the common law, which is much more lucrative. In fact, the gap between the Employment Standards Act’s minimum notice and common law notice can be 96 weeks.

Dutton Employment Law regularly drafts employments contracts for employers.

If you would like to learn more, please contact us.

An employment lawyer will be able to advise executive employers on issues pertaining to the vesting of different equity plans, pension and benefits, and related tax consequences.

In addition, an employment lawyer can advise on the payment of executive compensation generally, including tax and regulatory concerns.

Finally, an employment lawyer can advise executives on insurance issues generally, including director insurance, life insurance and short term and long term disability insurance.

If you would like to learn more, please contact us.

The Ontario Pay Equity Act provides that both women and men must receive equal pay for performing jobs that may be very different but are of equal value.

At the same time, the Employment Standards Act provides that women and men must receive equal pay for the the same job. In other words, equal pay for “equal work”.

If an employer breaks the law regarding pay equity, the employer could be ordered to pay the employee the amount of all compensation lost.

If you would like to learn more, please contact us.

Some employers do not pay their employees during training and some employers do not pay their employees for what they call an “extended job interview”. Both are illegal. All employees in Ontario must be paid at all times. The only time it is ok not to pay someone for work is when that individual is not actually an employee.

Whether someone is actually an employee depends on the circumstances. For example, bona fide independent contractors and interns are not employees and need not be paid for training. However, it is very challenging for employers to prove an individual is an independent contractor or intern, and it doesn’t matter what the employer calls the individual. More often than not, the individual is actually an employee and must be paid at all times.

Dutton Employment Law regularly advises employers on the classification of their employees. We also act for employers in litigation related to the classification of employees.

If you would like to learn more, please contact us.

Employers must not discriminate against individuals when they hire their employees.

This means that the employer:

  • should not prescreen applicants for discriminatory reasons;
  • should not ask discriminatory questions in the interview;
  • should not refuse to hire anyone based on discrimination.

However, employers:

  • should make accommodations available at the interview; and
  • Should set policies for preventing discriminatory hiring practices.

If an employer does discriminate against an applicant employee, the employer could be ordered to compensate the applicant for injury to dignity, feelings, and self-respect, lost wages and future earnings.

If you would like to learn more, please contact us.

During Employment

Workers are sometimes classified by themselves or by their employer as an “independent contractor”.

Workers benefit from being classified as an independent contractor by paying less pay roll taxes and being able to deduct expenses. At the same time, employers benefit from classifying their workers as independent contractors by not having to pay for employee payroll taxes, vacation pay, holiday pay, overtime, minimum wage and termination pay or severance.

In our experience, most workers who are classified as independent contractors are wrong. If the employer exerts any real control over the worker, then the worker is likely an employee, not an independent contractor. It makes no difference if the worker signed a contract stating he or she is an independent contractor. The only thing that matters is the true substance of the relationship.

Our counsel has significant and winning experience prosecuting independent contractor cases. Please contact our office for more information in clarifying whether an individual is actually an independent contractor.

Sometimes, employees are given new employment contracts to sign after they have already worked for the employer for some time. This could be because of a promotion, a change in ownership or restructuring.

However, it is important to know that new employment contracts are not valid unless the employee and employer were provided “fresh consideration”, which means a benefit for both sides. For example, if an employee was given a raise in exchange for a new contract, then the contract would be valid. However, if the employee was unilaterally given a new contract without any new benefit of any kind (i.e. raise, bonus, better insurance plan, etc.), then the new contract would be unenforceable.

Fresh consideration is just one of many issues raised by new employment contracts. Other issues to look out for is the insertion of a termination clause or a restrictive covenant, or changes to vacation days.

If you would like to learn more, please contact us.

A non-competition clause (or non-competition agreement) is a restrictive covenant in an employment contract. Not all employees have one.

A restrictive covenant is a clause in an employment contract that limits what the employee can do during and after employment.

Specifically, a non-competition clause limits the employee from working for a competitor or going into business themselves in a competitive nature against their former employer.

Non-competition clauses are restraints of trade, meaning they restrict an individual’s ability to work following the end of employment. For this reason, courts are reluctant to enforce them unless they are carefully crafted and limited in territory and in time. For example, a valid non-competition clause would describe a valid reason for limiting competition, and then limit the employee from competing in downtown Toronto for just 12 months. An unenforceable non-competition clause, on the other hand, would fail to define a valid reason for its existence and also fail to define a region, and then try and limit the employee from competing for three years.

Also because non-competition clauses are restraints on trade, if an employee is terminated from his or her job, and he or she has a non-competition clause in their employment contract, a judge would likely award them a lengthier notice period . This is because the employee was contractually limited in how quickly they could reasonably find new employment due to the fact they couldn’t apply to competitors.

If you would like to learn more, please contact us.

A non-solicitation clause (or non-solicitation agreement) is a restrictive covenant in an employment contract. Not all employees have one. However, even if an employee does not have one, and that employee is an executive or high level manager, he or she may be bound to an implied non-solicitation duty as a fiduciary.

Specifically, a non-solicitation clause limits the employee from taking or attempting take the customers of the employer. In this regard, most individuals with a sales related position have a non-solicitation clause in their employment contract.

Non-solicitation clauses are restraints of trade, meaning they restrict an individual’s ability to work following the end of employment. However, unlike non-competition clauses, courts are more open to enforcing non-solicitation clauses to protect the valid business concerns of former employers.

Nevertheless, employers should carefully craft non-solicitation clauses to make sure they remain valid if tested by a court. The non-solicitation clause should describe how it necessary in the context of the business and the employee’s duties regarding it. Furthermore, the non-solicitation clause should only apply to customers to which the employee already has a relationship. Finally, the non-solicitation clause should be limited in territory and time. For example, an enforceable non-solicitation clause would describe the nature of the business, how the employee plays a role in the business, the customers the employee is expected to work with, who the employee is prevented from working with in the event the employee leaves, and that the employee is only prevented from soliciting customers in southern Ontario and for only 18 months.

If you would like to learn more, please contact us. We are a highly experienced non-solicitation law firm.

All employees owe a duty of confidentiality to their employer. It does not matter whether an employee’s employment contract includes a clause protecting confidentiality, all employees have an implied duty, during and after employment, to protect confidential information or trade secrets they acquired during their employment.

However, the law does not prevent ex-employees from using acquired skills or experience in new positions at new employers. Moreover, information that is not strictly “confidential” is not protected by the implied duty to keep confident company information. For example, a restaurant employee may owe a duty to preserve a recipe for his employer’s secret sauce, but a sales employee may not owe a duty to preserve his contacts, or well developed sales pitch that he acquired at his ex-employer, at his next job.

Regardless, it the onus of the employer to prove, based on a complicated legal test, that an employee has breached its confidentiality duties. If you have any questions concerning company confidentiality, please contact us. We specialize in the law of employment confidentiality and trade secrets.

We defend companies, directors, supervisors, engineers and workers in all Occupational Health and Safety Act prosecutions. We also assist our clients in Ministry of Labour investigations, the appeal  of stop work orders, the laying of charges and settlement.

Charges under the Occupational Health and Safety Act are very serious. Directors, owners, supervisors and workers can face jail time or a fine up to $25,000, and companies can be fined up to $500,000, as well as suffer the potentially devastating regulatory or tender effect of a health and safety violation.

Our counsel is a former Ministry of Labour prosecutor. We have the experience to defend all matters. Contact us today.

In addition, the Occupational Health and Safety Act requires an employer to prepare and review, at least once a year, an occupational health and safety policy, in writing, and create and oversee a program to implement the policy.

Furthermore, the Occupational Health and Safety Act requires an employer to enact and maintain a workplace violence policy and a workplace harassment policy.

Our firm can assist your company in developing and maintaining appropriate health and safety and workplace violence and harassment policies. Contact us today.

The Workplace Safety and Insurance Board (“WSIB”) administers compensation for most injuries suffered in Ontario workplaces.

The WSIB compensates injured employees on a “No Fault” basis. This means it does not matter who caused the injury. This is a benefit to employees because unlike a personal injury claim in court, a WSIB claim is not concerned with liability, if there is shared fault.

Nevertheless, WSIB is a shield for employers to the detriment of employees. Employees cannot sue their employer for a personal injury claim in court if their employer is registered or required to have been registered for WSIB as per the Workplace Safety and Insurance Act. Those employees who work for mandatory WSIB employers must make a claim for benefits through the WSIB; they usually have no recourse in the courts, and the difference between a claim through the WSIB and the courts can be significant.

The key issues regarding WSIB claims are whether or not someone has a work related injury, how serious the injury is, and how to accommodate or compensate for that injury.

Very few lawyers act as counsel in WSIB claims. Generally, employers and employees only attain legal counsel at the appeal stage, if necessary and where it not cost prohibitive for the client. The problem with the WSIB, versus the courts, is that WSIB claims are usually just too small.

Please contact us today if you have any questions about WSIB.

Most workers must be paid and provided the minimum employment standards, including vacation pay and overtime. However, certain exceptions exist whereby it is legal for employers not to pay a worker. One such exception are interns.

Nevertheless, most individuals classified as interns are wrong. It is extremely difficult to pass the government test as to whether an individual is truly an intern. The test is as follows:

If an employer provides an intern with training in skills that are used by the employer’s other employees, the individual will generally be considered an employee and not an intern unless all of the following conditions are met:

  1. The training is similar to that which is given in school.
  2. The training is for the benefit of the intern. They receive some benefit from the training, such as new knowledge or skills.
  3. The employer derives little, if any, benefit from the activity of the intern while he or she is being trained.
  4. The training doesn’t take someone else’s job.
  5. The employer isn’t promising the intern a job at the end of training.
  6. The Intern has been told that he or she will not be paid for their time.

Dutton is a winning Toronto employment law firm prosecuting intern cases. Please contact us today for more information.

Everyone has the right to be free from unwelcome comments or conduct in the workplace. Several laws introduced by the federal and provincial governments protect workers from harassment in the workplace (i.e. Ontario’s Occupational Health and Safety Act) and provide compensation in case of a breach (i.e Ontario’s Human Rights Code).

Harassment can come in many forms, including:

  • Unwelcome remarks about race, religion, sex, or age any other grounds of discrimination;
  • Unwelcome physical contact;
  • Threats or intimidating remarks; and
  • Violence.

All employers must prepare and review a policy on workplace harassment at least once a year.

If the employer or an employee of the employer is guilty of harassment, the employer can be fined, ordered to change its policies, make accommodations, and compensate the victim financially as much as $200,000 or more.

If you would like to learn more, please contact us.

Employees in Ontario have the right to a discrimination free workplace. This includes all areas of active employment (and the hiring and termination of employment), including, wages, hours, job descriptions, the assigning of work, evaluations, discipline, promotion and everything else under the control of the employer or its employees.

Discrimination is very broadly defined. Discrimination in the workplace means unjust or prejudicial treatment by the employer or employee of the employer because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. Examples of discrimination cases handled at Dutton Employment Law firm include:

  • Accommodation of disabilities, parental obligations or illnesses;
  • Discriminatory drug and alcohol testing or discipline;
  • Discrimination in the promotion of female minorities;
  • Lack of work assigned due to past injury at the workplace; and
  • Wrongful comments and touching of a sexual nature directed at female employees.

Individuals who have been discriminated against in the workplace are entitled to financial compensation. Primarily, employers can be ordered to compensate employees for injuries to their dignity and self worth (usually between $10,000 and $25,000, but there is no limit). Secondly, employers can be ordered to compensate employees for money that has been lost because of discrimination. For example, lost income or the difference in income between a job at a discriminatory workplace and a new job.

Those with questions or concerns regarding discrimination should speak to a qualified employment lawyer specializing in discrimination law in the workplace. The wrong advice could cost up to $500,000.

Please contact us for more.

Employers must accommodate their employers with disabilities, short of undue hardship. This means that, where practical, employers are obliged to permit disabled employees special treatment at the workplace, or remain employed while on prolonged leave from work.

Such accommodations that our firm have handled include amending working hours, providing alternative jobs, furnishing special office space or furniture, moving offices, working from home and providing added break time. In this regard, our firm has winning experience in professionally and confidentially negotiating accommodations on behalf of employees and employers.

As well, we have significant experience in working with employers, insurers and medical practitioners in permitting disabled employees to stop working while continuing to receive their pay through short term and long term disability benefits. Our firm is one of the few Toronto employment law firms specializing in the appeal of disability claims.

Employers should also be aware that if they fail to accommodate an employee’s disability, or discipline / terminate them due to disability, or treat them adversely in some way because of disability, they can be liable to compensate or reinstate affected employees. Unlike a wrongful dismissal lawsuit, in a discrimination claim at the Human Rights Tribunal, employers can be forced to rehire a terminated employee, and pay them back pay, plus damages for injuries to dignity and self worth.

Dutton is a Toronto disability law firm. Contact us today for more.

In certain circumstances, employees are entitled to take an unpaid leave of absence from work. Note that employment insurance (“EI”), not the employer, pays the employee maternity, parental, sickness and compassionate care benefits, if the employee qualifies. Some employers, however, provide their employees the benefit of topping up employment insurance during a leave of absence. This is not required, though.

In Ontario, as per the Employment Standards Act, all employees are entitled to take unpaid leave of absences. This means their job is protected for when they return. Employees must be reinstated to the same position they held before their leave if it still exists, or to a comparable position if not. At the same time, employees on leave continue to earn seniority and credit for length of service. Furthermore, employers must continue to provide an employee on leave the same benefits (i.e. dental insurance, short term and long term disability insurance) they would have received had they still been working.

All employees are entitled to the following types of protected leaves of absences, if they qualify: pregnancy, parental, personal emergency, family caregiver, family medical, critically ill child care, organ donor, reservist, and crime-related child death or disappearance leave.

Dutton is a leave of absence employment law firm. Please contact us today if you have any questions.

Employers are free to discipline their employees however they wish. In fact, employers are not even required to discipline their employers before they can terminate employment. Employers can fire anybody for any reason, at any time, so long as it not discriminatory. It is only a wrongful dismissal if the employer failed to provide notice or termination pay in lieu of notice upon termination without just cause.

Accordingly, employers are free to craft their own discipline strategy. Most employers choose to enforce on their employees a Performance Improvement Plan (“PIP”). This is a written record of discipline, warning and outline for improvement. Employees are cautioned, however, never to let a PIP lull them into a false sense of hope. Most employers, in our experience, use a PIP for only one reason – to pad the case should they elect to terminate the employee for just cause. This is because without a very serious culminating incident, it is very challenging to terminate an employee for just cause. The law usually requires several warnings regarding an employee’s conduct before cause to terminate without notice is justifiable.

Sometimes, however, an employee is able to claim a constructive dismissal if their employer takes discipline too far. A constructive dismissal allows an employee to stop working and demand termination pay or sue for wrongful dismissal even though the employee was never terminated. In this respect, an employee may be able to claim a constructive dismissal if the employer:

  • lowered the employee’s pay;
  • changed the employee’s description;
  • demoted the employee;
  • moved the employee to a different location;
  • was overly hostile in the discipline process;
  • was unfair in the discipline process;
  • imposed a probation period; or
  • imposed a suspension.

Dutton is a top Toronto employment law firm specializing in employee discipline. Please contact us today if you have any questions.

Most workers in Ontario are covered by the Employment Standards Act. Otherwise, workers employed in federally regulated industries such as banking, telecommunications and airlines are covered by the Canada Labour Code. Both the Employment Standards Act and the Canada Labour Code enforce minimum employment laws regarding hourly wages, hours of work, public holidays and termination pay / severance, and leaves of absence, among others.

As employment standards are just a minimum, it is important to caution employees and employers alike that employees usually have significantly more recourse to sue for money through the courts rather than make a complaint to the applicable Ministry of Labour. For example, the difference between a severance claim at the courts and the Ministry of Labour can be 96 weeks’ pay. Moreover, employees are only allowed to use a single avenue of recourse – employees cannot make a complaint to the Ministry of Labour and sue, and vice versa.

Employment standards apply differently to different workers. All employment standards do not apply to independent contractors, some employment standards do not apply to interns (i.e. minimum wages), and most employment standards do not apply to professionals and managers (i.e. overtime). In this regard, employment standards, as minimums, are there primarily to protect the vulnerable in low wage industries.

If you are an employer, contact our employment law firm if you have any questions regarding employment standards. Otherwise, if you are an employee, we advise you to contact the free services offered at the Ontario Ministry of Labour or Canadian Ministry of Labour to make a complaint or ask a question.