Ana Kraljevic Law Firm

EMPLOYMENT LAW

Terms to Know

Employment Law

As an Etobicoke-based law firm we have helped both employers and employees with all aspects of the employment relationship.  

Employment law in Canada is an area of law that covers individuals where the terms and conditions of the employment relationship are governed by a contract. Every employment relationship is based on a contract, regardless of whether the contract is oral or written. Employment contracts can be indefinite or fixed-term (only covering a fixed period of time or a task that is definite and of limited duration).

Employment law does not cover employees who are unionized. Unionized employees must look to the collective agreement if there are any disputes with respect to the terms and conditions of their employment.

In recognition of the inherent vulnerability of employees relative to employers, Canada has enacted an array of employment laws that standardize and codify the workplace rights of every employee, whether federal or provincial. The Employment Standards Act is the governing legislation for employees and the Canada Labour Code is the governing legislation for federal employees. There are also other statutes that ensure that all employers must meet basic Canada-wide standards for health and safety and a discrimination and harassment-free workplace. The Occupational Health and Safety Act (OHSA) covers almost every worker in Ontario such that an individual need not fit the legal definition of an “employee” to benefit from its protection. The OHSA emphasizes the prevention of workplace accidents and diseases and is administered by the Ministry of Labour. Penalties for violating the OHSA include fines of up to $500,000 and even imprisonment. The federal Canadian Human Rights Act and the provincial Human Rights Code are statutes of quasi-constitutional status which prohibit adverse and differential treatment on prohibited grounds such as race, place of origin, and religion.

In Canada, every person has the right to equal treatment in employment law without discrimination. This fundamental right recognizes that a person’s sense of dignity, identity, and self-worth is derived, in large part, from work. It goes without saying that the quality of work and one’s workplace environment are correlated with quality of life in general. As most people spend the vast portion of their day at work, an unhealthy work environment results in poor employee morale, diminished productivity, more sick days, and poorer health outcomes.    

Employment law is a highly regulated and dynamic area of law that evolves in response to changing societal values and norms. For example, the new right to disconnect policy which came into effect on January 1, 2022 requires employers with more than 25 employees to have a written policy on the right to disconnect from work meaning that an employee is not expected to engage in work-related communications after their work day is over.

If you have been wrongfully dismissed or you believe that you are being subjected to discrimination, bullying, harassment or an unsafe work environment, speak with an employment lawyer today to obtain advice to proactively address the situation. 

Wrongful Dismissal

The amount of notice that an employee is entitled to upon termination is the focus of most wrongful dismissal actions. If the employer does not set out a termination provision that at least meets the minimum standards of the Employment Standards Act or the Canada Labour Code then the common law presumption of reasonable notice applies. Reasonable notice is more generous than the minimum notice entitlements under the Employment Standards Act.  If you are wrongfully dismissed, ensure that your rights are protected by speaking to an experienced lawyer who has worked on similar cases. Proper and thorough legal advice will ensure that you receive what you deserve under the law. 

Practice Areas

We represent both employers and employees in employment related litigation. 

We are skilled in all areas of employment-related law including:

  • Wrongful termination
  • Constructive Dismissal
  • Sexual Harassment
  • Code-related discrimination
  • Failure to Accommodate issues
  • Workplace policies 
  • Disciplinary and performance management process 
  • Workplace investigation

F.A.Q.

The law allows an employer to dismiss an employee summarily, (i.e., without notice) where the employer has just cause for terminating the employment relationship. The following are instances where the law will accord the employer with the right to summarily dismiss a delinquent employee:

  1. if the employee if guilty of serious misconduct;
  2. habitual neglect of duty;
  3. incompetence;
  4. conduct incompatible with his duties, or prejudicial to the employer’s interests in a material manner; or
  5. wilful disobedience.

The key question that is before the courts when an employee challenges a just cause termination is whether the employee has engaged in misconduct that is incompatible with the fundamental terms of the employment relationship. In practice, it is a high standard to meet and is frequently referred to as the “capital punishment” of the employment relationship. As stated by the court in Dowling, dismissal is only warranted when the misconduct is sufficiently serious that it strikes at the heart of the employment relationship. The court will examine the following factors to determine whether a just cause dismissal is justified:

  1. the nature and extent of the misconduct;
  2. the surrounding circumstances; and
  3. whether dismissal is warranted proportionate having regard to all of the factors.

Employers will frequently provide a tight deadline in which to accept a termination package in the hopes that this will dissuade ex-employees from commencing a lawsuit. It is important to know that this deadline is only contractual and that the employer’s legal obligations still apply: the employer must pay wages equivalent to the minimum notice period pursuant to the Employment Standards Act. The deadline is a pressure tactic that is intended to benefit only the employer who is hoping that you will accept it and they will not have to defend themselves against a lawsuit if you decide to pursue all of the entitlements that you are owed. Almost without exception, the employer will offer less than what an employee is legally entitled to but more than what is prescribed by the Employment Standards Act. If you are concerned about the deadline you can always write to the employer and ask for an extension, highlighting that you need to time to seek legal advice. It would be uncourteous for the employer to deny this reasonable request as it should be presumed that you would take the offer to an experienced lawyer to review.

 

 

The right to reinstatement is an employee’s right to resume their position following a wrongful dismissal. Unionized employees and federal employees have the right to seek reinstatement. Provincial employees generally do not have the right to seek reinstatement. Unionized employees can seek reinstatement pursuant to the terms of their collective agreement. Federal employees who have been dismissed and employed for more than 12 months can apply for reinstatement pursuant to section 240(1) of the Canada Labour Code if they make a complaint within 90 days of the dismissal.

Probationary periods are essentially meaningless. While an employer can insert a probationary period into a contract, a probationary period can never provide for less than what is required under the Employment Standards Act (“ESA”). Under section 54 of the ESA, an employee is eligible for notice of termination or termination of pay if he or she has been continuously employed for three months or more. In this case, if there is a clause in the contract regarding a three-month probationary period, and it is enforceable, meaning that it complies with the ESA, then the employee would normally not be entitled to any termination pay. If there is no provision in the contract regarding a probationary period, then notice of termination may be required.