What is Employment Law?
Employment law is the set of rules regulating the non-unionized workplace. Labour law, on the other hand, is the set of rules regulating the unionized workplace.
Employment law principles generally favour the employee. This is because employers usually have greater sophistication and bargaining power relative to employee vulnerability. In this regard, the sympathies of courts generally favour the employee as well.
Employment law takes its cue from two broad areas of law: legislation and common law. Legislation is written down law passed by governments, and common law is judge made law passed down from court decisions. In this regard, legislation is static, while the common law is dynamic. The common law allows employees and employers alike to make novel arguments in front of a judge and evolve employment law over time, whereas legislation is set in stone until it isn’t.
Employment Law: Legislation
Employment legislation is concerned with minimum protections for employees only. These laws include employment standards (i.e. wages, hours, overtime, statutory notice, etc. – the Employment Standards Act), human rights (i.e. discrimination in the workplace, harassment etc. – the Human Rights Code), occupational health and safety (i.e. work safe protections, etc. – the Occupational Health and Safety Act), pay equity (i.e. equal pay for equal for work, etc. – the Pay Equity Act) and workers compensation (i.e. insurance for injured employees, etc. – the Workplace Safety and Insurance Act). These statute-based laws have their own complaint procedures which do not require the need of an employment lawyer to make a complaint. For example, if an employee is not being paid overtime, all they have to do is call the Ministry of Labour, and the Ministry of Labour investigates and prosecutes the employer on behalf of the employee.
Employment Law: the Common Law
Conversely, employment common law is concerned with the contractual rights of employees and employers. Note that an actual, written down employment contract is never required - the common law implies an employment contract on all “masters and servants”, and the only way to negate the implication of common law terms implied in an employment contract on workplace parties is to expressly contract out of these terms. This is why employers are keen to make their employees sign an employment contract – it takes away their common law rights. This is important because employment contracts, express or implied, provide much more lucrative rights to employees than that of legislation. For example, an implied employment contract gives an employee the right to as much as 30 or so months of notice of termination, whereas legislation such as the Employment Standards Act gives only a week of notice for every year of service, up to a maximum of 8 weeks!
Thus, legislation such as the Employment Standards Act exists only to protect the vulnerable, low paid worker who cannot afford an employment lawyer. This is because an employee who complains to the Ministry of Labour is entitled only to a set maximum amount of money set by legislation, which is usually a pittance compared to the common law. If the employee is well paid, and has some seniority with the employer, it always makes more sense to forgo complaining to the Ministry of Labour and instead seek recourse under the common law (i.e. sue).
The common law, unlike legislated employment law, does require the assistance of a lawyer to make a complaint regarding an employer’s activities. This is because the only way to get recourse under the common law is to sue in a court (the Ministry of Labour does not have the jurisdiction to give common law remedies), which should be handled by a licensed lawyer practicing exclusively in employment law. Read more about what does an employment lawyer do?
Employment Law Key: Wrongful Dismissal
The most common issues under employment related common law are the rights of an employee upon termination. This broad area of employment law is known as the law of “wrongful dismissal.” Wrongful dismissal, also referred to as unjust dismissal, wrongful discharge or wrongful termination, is a term for when an employment contract has been terminated by the employer and the termination breaches one of the terms of the employment contract, express or implied. The most common form of wrongful dismissal is simply when an employer fails to provide an employee reasonable notice of the termination of the employment contract. In this regard, the most common sub-issue in wrongful dismissal is what is the appropriate amount of notice an employer must give an employee. Here, there is no formula (unlike employment standards legislation), and the common law (i.e. similar cases, or "precedents") must be examined to calculate the period of notice. This is what employment lawyers usually fight over and is the bread and butter of employment law. The second most common sub-issue in wrongful dismissal is what should be included in the amount of notice provided – is the employee entitled to full salary, commissions, bonus and benefits or pay in lieu of during the period of notice?
Employment Law: All Areas
Notwithstanding the importance of wrongful dismissal law, employment lawyers also recognize the following sub-areas of employment law, the subjects of which would be too narrow for this summary:
- Constructive Dismissal
- Data Privacy
- Disability Accommodation
- Disability Insurance
- Defamation and Loss of Reputation
- Employee, Independent Contractor or Dependent Contractor Issues
- Drug Testing
- Employee Benefits
- Executive Compensation
- Ethics Compliance, Investigations and Whistleblower Response
- Employment Immigration
- Human Rights
- Just Cause Terminations
- Leaves of Absence
- Pay Equity
- Pensions and Benefits
- Restrictive Covenants including Unfair Competition and Trade Secrets, Non-disclosure Agreements, and Non-solicitation Agreements.
- More for employment law for employees and more for employment law for employers.
In summary, employment law is the law of every legal issue related to the workplace and the "master-servant" relationship. For a primer, read our new article about workplace law in Ontario.
That being said, the most common legal issue that arises in the workplace is the rights of the employee upon termination. This area of employment law is called the law of wrongful dismissal.