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In Ontario, an employer can terminate an employee for just cause, which if upheld, will disentitle the employee to statutory Termination and/or Severance Pay or common law pay-in-lieu of notice. Common examples of conduct which can support a just cause termination include theft, harassment or poor performance. Just cause is difficult to substantiate so employers must be careful to document their decision. If an employee feels that his/her employer did not have just cause to terminate their employment, the employee can commence an action for wrongful dismissal or file a complaint with the Human Rights Tribunal or Ministry of Labour depending on the facts.
Employees in Ontario who are not terminated for just cause are usually entitled to statutory severance and/or common law pay in lieu of notice at the time of termination. If you have been provided with a severance package and you are being asked to sign a Full and Final Release you should have it reviewed by an employment lawyer to make sure that you are receiving your proper entitlements to things such as severance, bonus, commissions and pension. In addition, inducements from prior positions may have an impact on the quantum of severance that you are entitled to. Heath Law routinely advises employees on severance agreements and assists employers in structuring severance agreements to minimize the risk of litigation.
A constructive dismissal occurs when an employer unilaterally changes a fundamental term of employment. For example, the employer reduces an employee’s salary or does not provide a working environment free of workplace harassment. An employee who believes he/she has been constructively dismissed can resign from his/her employment and then seek damages for wrongful dismissal from his/her employer. Heath Law regularly provides advice to employers and employees on avoiding claims of constructive dismissal and minimizing the risks of making changes to the terms of an employees employment.
The Ontario Human Rights Code prohibits discrimination in employment on a number of prohibited grounds including race, age and a recognized disability. If you feel that you have been discriminated against at the pre-hiring stage of employment, during your employment or you were terminated as a result of discrimination, you may have grounds to file a complaint at the Ontario Human Rights Tribunal. Heath Law routinely represents both employers and employees in all issues involving discrimination.
If you believe that you have been subjected to workplace harassment from co-workers or your supervisor/manager then you should advise your immediate supervisor and follow the procedure described in your company’s harassment policies. If the harassment is based on a prohibited ground under the Ontario Human Rights Code, such as race, age or a disability you may have the right to file a complaint with the Ontario Human Rights Tribunal.
There is a spectrum of employment with a true employee at one end , a dependent contractor in the middle and an independent contractor at the other end. There have been a number of recent decisions which have held that even though a contractor and business have called the relationship a ‘contractor relationship’, the contractor is really an ’employee’ or ‘dependent contractor’ and therefore entitled to severance. The courts focus in on control and dependence in a multi-layered analysis to determine the true nature of a relationship. The consequences for getting this wrong can be costly in terms of taxes to the CRA, payments to the WSIB and severance owing to contractors/consultants. Therefore, both employers and contractors/consultants should have their agreements and relationships reviewed to find out where they fall in the spectrum of employment.
In Ontario, trade unions have exclusive bargaining authority and most terms and conditions of employment must be bargained collectively with the union rather than individually. Heath Law can provide guidance for each step of the unionized process from certifications, to advising on discipline/administering the collective agreement and dealing with issues between competing unions or decertifications.