Ana Kraljevic Law Firm

Employment Law in and around Toronto

Employment IN ONTARIO

Employment law is a very broad area of law that governs all aspects of working life for employers and employees. It includes laws that cover the integral aspects of the employment relationship that are normally covered in the employment agreement/contract such as wages, overtime pay, hours of work, termination pay, leaves of absence, pregnancy and parental leave, and non-compete agreements. It also covers the non-contractual aspects of the employment relationship when things go wrong – such as the employer’s obligations when a workplace injury occurs or when an employee is discriminated against or harassed, whether it is by a fellow co-worker or a supervisor. 

In order to provide protections to employees, Ontario has enacted employment laws that set out the minimum standards that must be followed in all workplaces with few exceptions. For example, certain classes of individuals are not governed by the Employment Standards Act such as judges, police officers, or secondary school students who perform work through a work experience program. Employees who work in a unionized environment are also excluded from the protective provisions of the Employment Standards Act. If your work environment is unionized then you should look to your collective agreement for potential remedies and consult your union representative. Another class of employees who are exempt from the Employment Standards Act are federal employees. If you work in a sector that is governed by federal law, such as employees working for airlines, banks, the federal civil service, post offices, radio and television stations, and inter-provincial railways, then the Employment Standards Act does not apply to you and you would fall under the purview of Part III of the Canada Labour Code which sets out the rights of workers in these federally regulated industries. 

Each province has its own employment-related statutes. This article will address employment law for Ontario employees who fall under the protective auspices of the Employment Standards Act and other employee rights legislation such as the Occupational Health and Safety Act and the Pay Equity Act

In Ontario, the statutory framework and the common law work in tandem to provide a robust set of protections to employees. With respect to the latter, the common law has established many precedents that favour the employee rather than the employer and impose a high burden on the employer in many different scenarios. For example, if the employer does not specifically set out a termination provision that clearly and unambiguously rebuts the presumption that an employee is entitled to common law reasonable notice, then the employee is presumptively entitled to reasonable notice. Common law reasonable notice is substantially greater than the minimum statutory requirements prescribed by section 57 of the Employment Standards Act. For example, an employee who was terminated after working for two years and half years would be entitled to no more than two weeks of pay according to the ESA. However, if one could prove that the reasonable notice period was not rebutted by the language in the contract, then that same employee may be entitled to a range of reasonable notice periods anywhere between two to six months. 

ontario sets minimum standards

Where an employer has agreed to provide some greater benefit than that set out in the legislation, the employer will be obligated to honour that promise and will not be entitled to fall back on the prescribed minimum standards in the ESA. Conversely, employers who are not motivated to provide more than the minimum statutory benefits and protections may not contract out of the Employment Standards Act or the Ontario Human Rights Code. Section 5(1) of the Ontario Human Rights Code has specifically enshrined the right of every person to equal treatment with respect to employment without discrimination on the basis of protected grounds such as 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. 

The minimum baseline standards set out in Ontario’s employment legislation protects employees in recognition of the power imbalance inherent to the employment relationship. Employees are considered a vulnerable group and are entitled to many protections, benefits and oversight resources. For example, if your employer terminates your employment but does not provide you with pay in lieu of notice in accordance with section of the Employment Standards Act, you can file a complaint with the Ministry of Labour. In general, you may file a claim with the Ministry of Labour whenever your employer has violated your rights under the Employment Standards Act. These may include situations where your employer has not paid you outstanding vacation pay, public holiday pay, or failing to provide time off for an entitled leave of absence. If you decide to proceed with a complaint with the Ministry of Labour then it is important to note that you cannot also commence a lawsuit against your employer. 

So When Should I go see a lawyer?

There are several situations in which it would be wise to seek legal counsel rather than filing a complaint with the Ministry of Labour. Read below to see if one of these scenarios may apply to you:

1) I was just fired without cause. My employer is offering me termination pay but I have to sign a release by a specific deadline. Should I accept it?

This is the most common scenario when you should definitely see a lawyer. Employers will typically send a termination letter in which they offer a final payment in exchange for signing a full and final release in which you agree not to pursue them for any further payments or to make any other claims. The employer normally sets out a deadline in which to respond which makes it seem as though that offer will be forever rescinded unless the employee accepts by the deadline. 

These offers have time-sensitive deadlines to apply pressure to the employee to accept because they are afraid that the offer will no longer be on the table and they may get less if they decide to proceed with a lawsuit. The employer will try to incentivize a quick and easy settlement by offering more than the minimum standards of the Employment Standards Act. However, what happens if you can’t schedule an appointment with a lawyer in time or the deadline has already passed? Have you lost out on the offer? What should you do?

There is nothing to worry about even if the deadline has passed. It is very rare that an employer will not reinstate an original offer in order to settle the matter and to avoid litigation. It is key to remember that an employer is making an offer more generous than the minimum payouts required under the Employment Standards Act not as a gesture of good faith to the employee, but to save legal costs. However, notwithstanding that an offer may appear attractive at first glance, you may be entitled to more than that initial offer. This is why it is crucial to have a lawyer review the offer and advise you whether you may be entitled to more based on common law standards. Common law reasonable notice looks at other factors such as an employee’s seniority, personal characteristics such as age, and the geographic location and character of the employment. You may also be entitled to additional damages if the manner of termination was conducted in bad faith or you were subjected to harassment or discrimination. A lawyer will be able to look at the case holistically to determine whether the offer is a fair one based on your individual circumstances. 

You must remember that your employer is obligated to comply with the minimum standards of the Employment Standards Act so even if you miss the deadline for the offer, they still have to pay you wages equivalent to the minimum notice requirements.

2) I have been presented with an employment agreement. Should I just sign it or should I negotiate?

If you have been induced to leave current employment by being offered higher compensation and more benefits with a new employer, then you are in a fortunate position. However, you must also realize that you are vulnerable in some ways as well. Leaving secure employment where you have attained seniority and have accrued a substantial reasonable notice period (and may be too expensive to fire) may backfire on you if you are summarily dismissed by the new company shortly after you leave your old job. It would be wise to leverage your position as a desirable and sought-after job candidate into negotiating a termination clause that recognizes your years of service with the previous employer. A lawyer may be able to negotiate a better termination package to protect you in the event that you are terminated.

3) My employer has added job duties to my role that I have never done before. I am not getting paid more and it is causing me to work late, on top of the extra stress. What should I do?

This is also a common scenario in many workplaces. The employer may be setting you up to fail by creating a stressful work environment in order to force you to quit. You may be able to make a claim for constructive dismissal. Constructive dismissal occurs when the employer unilaterally makes a fundamental and unfavourable change to the employment agreement without providing reasonable notice of the change. The key is that the change must be unfavourable to the employee. An increase in pay or a promotion in job title would not be considered constructive dismissal because these are positive changes that benefit the employee.

In this case, the employee is forced to complete additional tasks that fall outside the scope of their normal duties but they are adversely affected because there is no new job title or pay increase. In short, the employer has introduced a change to the employment agreement without providing any additional consideration. Where an employer imposes a fundamental and adverse changes to the employment relationship, the employee may treat the contract as having ended and sue for damages for wrongful dismissal. The burden to prove that constructive dismissal has occurred is always on the employee and is very context-specific. The employee in this case should definitely consult with a lawyer who can advocate for them.

4) I have come back from sick leave and my doctor has outlined some restrictions which prohibit me from completing certain tasks. My employer says that I have to do them anyway or I will be out of a job. What should I do?

In this situation it would be advisable to seek legal advice immediately. Do not go against your doctor’s restrictions and endanger your health. The law is well settled that an employer has a duty to accommodate to the point of undue hardship. Unless your contract of employment has been frustrated by these restrictions and your employer cannot modify your duties in a way where you can still provide work of value to the employer, then the test for undue hardship will not be met. The employer must prove that it made every possible effort to assist the employee in finding ways to perform the available work in a particular workplace. When the accommodations are temporary in nature, employers are generally expected to accept that some degree of productivity will be lost in accommodating the employee. 

In practice, it is very difficult for an employer to prove that they cannot accommodate an employee without suffering undue hardship. It is even implied that some hardship will be inevitable. Employers, particularly large employers who are wealthy, have an obligation to pay for special equipment to enable employees to do their job. 

If you are an employee who has been wrongfully terminated, harassed at work, or denied overtime pay, you may be wondering what your next steps should be. You may have considered filing a lawsuit against your employer, but you aren’t sure where to start. Before you make any decisions you should speak to an experienced lawyer who can advise you of your options. We have acted for many employees who have been treated unfairly. We are conveniently located in the centre of Etobicoke next to Islington subway station. You can visit or office or we can set up a Zoom meeting at your convenience. We understand that you are probably going through a stressful time. We are here to put your mind at ease! 

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