Willson%20Lewis%20LLP

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Willson Lewis LLP
EMPLOYMENT LAW HIRING, FIRING, AND
EVERYTHING IN BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST
STRENGTH! Offering experienced counsel
practising in all aspects of civil and commercial
litigation including employment law,
construction, family, equine law, wrongful
dismissal, tax disputes, estate and property
disputes, and collections 1183 King Street West,
Suite 200, Toronto, Ontario M6K 3C5Tel 416
534-9504 Fax [phone] www.willsonlewis.com
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Willson Lewis LLP Biographies CATHERINE E.
WILLSON, B.A., LL.B., PARTNER A longstanding
member of the Ontario Bar Association, Catherine
E. Willson is a founding partner of Willson Lewis
LLP, and has established a successful practice in
employment law, civil litigation, equine,
collections, construction, and family law. She
was an executive member of the Canadian Bar
Association (Ontario) Civil Litigation Section.
She is also a member of the Advocates Society,
the Association of Trial Lawyers of America, and
the Toronto Construction Association. Catherine
is both the Chairman of the Risk Management
Committee and an Honourary Governor of the Royal
Agricultural Winter Fair. Catherine is the legal
expert for the Canadian Federation of Independent
Business (Member Services) and is a regular
speaker at legal and business conferences, an
instructor at the University of Guelph, and
writes on legal issues for several national
publications. CRAIG A. LEWIS, B.A., LL.B.,
PARTNER Has been practicing employment law since
being called to the Bar. He received his
Bachelor of Laws degree from Queens University
and was admitted to the Law Society of Upper
Canada in 1993. A member of the Ontario Bar
Association, Advocates Society, Canadian
Association of Black Lawyers and the Metropolitan
Toronto Lawyers Association. Craig has been a
speaker at Ontario Bar Association seminars
concerning advocacy matters and has litigated at
all levels of Court in the Province. In his
employment practice, Craig has prepared
employment contracts and independent contractor
agreements. He has provided advice on hiring,
terminations packages and wrongful dismissal
claims. He has assisted clients in drafting
employment policy manuals. Craig has extensive
experience in responding to human rights
complaints.
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Willson Lewis LLP Biographies MARLENE KAZMAN
B.Sc., LL.B. - ASSOCIATE Marlene was called to
the Ontario Bar in 1993, having received her
LL.B. from the University of Western Ontario and
completing her articles at one of the oldest law
firms in Canada. Marlenes practice includes
civil, matrimonial and construction lien law.
Marlene has trial experience at all levels of
Court in the Province of Ontario, and she is a
member of the Ontario Bar Association and the
Womens Law Association of Ontario. Marlene is a
frequent contributing writer of legal information
articles for the National Credit News.
CHRISTOPHER ROBERTSON, B.A., LL.B. -
ASSOCIATE Christopher is an associate with
Willson Lewis LLP and was called to the Bar in
2003, Christopher's practice focuses on
employment-related litigation and commercial
disputes. He has successfully appeared at the
Ontario Superior Court of Justice on the
Commercial List and the Ontario Court of Appeal.
He has also appeared before various Boards and
Tribunals including the Ontario Labour Relations
Board, the Ontario Human Rights Tribunal, the
Licence Appeals Tribunal, the Health Professions
Appeal and Review Board, as well as professional
regulatory agencies. AIMEE COLYER, B.A., LL.B.
ASSOCIATE Aimee was called to the Ontario Bar in
2007. After completing her articles with Willson
Lewis LLP, Aimee practised as an associate with
two large Bay Street firms. In 2009, she returned
to the firm to practice family law and civil
litigation. Aimee is a member of the Ontario Bar
Association.
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Experienced counsel practising in
CIVIL LITIGATION

• dispute resolution
• court actions, applications, injunctive relief
• commercial disputes
• personal disputes
• mediation and arbitration

EMPLOYMENT LAW

• employment contracts and consulting agreements
• wrongful dismissal
• conflicts in the workplace
• termination packages
• human rights

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Experienced counsel practising in
CONSTRUCTION LAW

• construction projects (general contract/project
  management/design build)
• preparation of construction contracts
• tender advice and resolution of disputes
• negotiation and litigation of construction
  disputes including lien actions and breach of
  trust issues

FAMILY LAW

• divorce, separation, custody, support, property
  issues
• separation agreements
• cohabitation and marriage contracts
• settlement negotiation and mediation

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Experienced counsel practising in
EQUINE LAW

• dispute resolution, litigation
• purchase and sale agreements, boarding agreements
  and leasing agreements
• co-ownership agreements and syndications
• taxation

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EMPLOYMENT RELATED STATUTES
EMPLOYER LIABILITY
TheCanada Labour Code
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HIRING EMPLOYMENT CONTRACTS
APPLICATIONS RECRUITING DO NOT ? Ask about
age, date of birth, hair or eye colour, weight
or height ? Ask about religious
affiliation ? Ask about Canadian
citizenship ? Ask for maiden name or
greeting identification, i.e. Mr. or Miss.
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JOB OFFERS
? Avoid making a verbal job offer with different
written terms later ? Do advise that the offer
is forthcoming and send it in writing ? Do give
time for the employee to review ? Do encourage
the employee to get legal advice ? Do get
signature before work starts
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EMPLOYMENT CONTRACTS

• CONSIDER
• ? Indefinite term or specific project or task
• ? Compensation including bonuses
• ? Describing duties and specifying ability to
  change
• ? Describing the probationary nature of
  the position and ability to dismiss without
  notice
• ? Providing for Termination
• Ontario Employment Standards Act, 2000 and
  related provincial statutes
• Common law (except Quebec)

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EMPLOYMENT CONTRACTS

• CONSIDER
• Inserting a non-competition clause
• temporal, geographical, task specific
  restrictions
• Inserting a non-solicitation clause
• customers, employees
• Inserting a confidential information clause
• Ensure that adequate consideration isprovided
  for the contractual relationship

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EMPLOYEE vs. INDEPENDENT CONTRACTOR

• Employee
• Income tax, CPP, EI deductions and remittances
• T4s
• Vacation pay, overtime, holiday pay
• Termination pay
• Independent contractor
• No obligation on principal to pay income tax,
  CPP, EI just GST, HST
• Contractor must remit taxes
• Little or no notice of termination
• No EI
• Contractor can deduct his or her business
  expenses against income
• Relationship built on contract

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TESTS INDEPENDENT CONTRACTOR
? Control Test ? the degree of direction and
control over a worker ? Ownership of Tools ?
Chance of Profit ? Risk of Loss ? Organization
Test ?is an individuals work an integral part
of business operations of the company?
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COMPANY DOS

• ? Require a written contract for services
  executed by the contractor.
• Include a termination provision in the contract
  with notice of no less than an employees
  entitlement under the Employment Standards Act
  do not make reference to the Act in the
  contract.
• ? Make the contract for a definite term or task.
• ? The contract should indicate that the person is
  an independent contractor and not an employee.
• ? The contract should state that the contractor
  is responsible for paying all Government
  remittances to the appropriate agencies. It is
  a good idea to obtain an indemnity from the
  contractor to pay remittances required by
  Government agencies in the future.

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COMPANY DOS

• ? Clearly define the scope of authority provided
  to the contractor for example, the
  contractor may not enter into contracts on
  behalf of the company.
• The contract should indicate that the contractor
  is free to provide services to others.
• ? The contract should contain a confidential
  information clause.
• ? Ensure that adequate consideration is provided
  for the contractual relationship.
• Require invoices for services from the
  contractor.

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COMPANY DOS

• ? Clearly sever a prior employment relationship
  before entering into a contractual
  relationship.
• Consider the application of relevant taxes
  GST, HST, etc.
• Require the contractor to obtain a G.S.T. number
  and to charge or remit G.S.T. to the
  Government.
• ? Where transportation services are provided,
  specify that the contractor is responsible
  for the vehicle and all of its expenses.
• ? Permit the contractor to hire employees or
  subcontractors.

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COMPANY DONTS

• ? Include a non-solicitation/anti-competition
  clause in the contract
• Refer to the contractor as a commissioned sales
  person or speak of commission sales or
  salaries in the contract.
• ? Provide T4 slips.
• ? Exert control over the contractors hours of
  work, vacation time, or subject the
  contractor to company supervision or
  performance evaluations.
• ? Allow the contractor to use company stationary
  or business cards.

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COMPANY DONTS

• Supply a permanent workstation or office space
  or encourage the contractor to use company
  equipment or company staff as assistants.
• ? Restrict the number of clients that the
  contractor can serve.
• Prevent the contractor from soliciting his/her
  own clients or set quotas for the contractor.
• ? Require the contractor to comply with company
  policies and discipline procedures.
• ? Provide medical or disability benefits or
  vacation pay.

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EMPLOYEE MANAGEMENT DOS

• DO
• ? Have regular performance reviews
• ? Create a paper trail
• ? Show the level of performance required
• Communicate your expectations
• Give clear, prompt and consistent instruction
• ? Give written instruction
• Give warning memo
• ? Provide training

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DUTY TO ACCOMODATE
DO ? Listen to the Employee ? Work with the
Employee ? Make business needs known ? Ask for
medical information from Employees physicians ?
Tolerate absenteeism that is disability related ?
Accept a modified work schedule that is
reasonable ? Be sensitive to Employee concerns ?
Keep medical information confidential Need to
Know Only
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DUTY TO ACCOMODATE

• DONT
• ? Harass the employee for medical information
• ? Prefer employers opinion over medical
  opinion
• ? Send the employee to a company doctor,
  unless exceptional circumstances
• Treat the employee as if she/he is malingering
• ? Discipline for disability related absence
• ? Intimidate or bully the employee
• ? Refuse to deal with the employees lawyer

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RELEVANT LEGISLATION RE WORKPLACE CONDUCT

• Occupational Health and Safety Act, Bill 168
• Currently, employers who contravene the Act are
  guilty of an offence and face fines pursuant to
  section 66.
• Bill 168 amends section 1 (1) to include the
  following definitions
• "workplace harassment" means engaging in a course
  of vexatious comment or conduct against a worker
  in a workplace that is known or ought reasonably
  to be known to be unwelcome
• "workplace violence" means,
• (a) the exercise of physical force by a person
  against a worker, in a workplace, that causes or
  could cause physical injury to the worker,
• (b) an attempt to exercise physical force against
  a worker, in a workplace, that could cause
  physical injury to the worker,
• (c) a statement or behaviour that it is
  reasonable for a worker to interpret as a threat
  to exercise physical force against the worker, in
  a workplace, that could cause physical injury to
  the worker.
• The Bill will require employers with more than 5
  employees to develop a program to implement a
  workplace violence and harassment policy. The
  program must include measures for workers to
  report incidents of workplace harassment and set
  out how the employer will deal with incidents and
  complaints of workplace harassment.
• The Bill comes into force on June 15, 2010.

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Occupational Health and Safety Act,Bill 168

• Bill 168 outlines many requirements for Ontario
  employers including
• Specific assessments to measure the risk of
  workplace violence
• Measures to control the risks identified in these
  assessments including procedures for reporting
  violence, getting immediate assistance when
  violence is likely to occur, and guidelines for
  conducting investigations and handling complaints
• Written and posted policies and procedures
  addressing these risks
• Employee training in these policies and
  procedures
• Reasonable steps to prevent domestic violence in
  the workplace
• Disclosure of information about employees with a
  history of violent behaviour
• Continued conduct of assessments to ensure the
  policies protect employees
• Penalties for failed compliance include personal
  fines up to 25,000 or imprisonment for a term of
  not more than twelve months or both. Corporations
  may be fined up to 500,000.
• An employee has the right to refuse to work if
  the employee believes that he/she is in danger of
  becoming a victim of workplace violence.

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DISMISSAL
What is Constructive Dismissal? ? Demotion ?
Unilateral reduction in salary ? A hostile work
environment (problem managers) ? Geographic
transfer ? Change in commission structure or
method of remuneration
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DISMISSAL
Just Cause v. Without Cause Just Cause ? No
notice or pay in lieu required ? Requires serious
misconduct (i.e. theft) by employee, or gross
incompetence or insubordination ? Warnings must
be issued ? A reasonable opportunity to explain,
or improve, must be given Without Cause ?
Notice or pay in lieu required pursuant to
Employment Standards Act, or Canada Labour
Code and common law
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(No Transcript)
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The Employment Standards Act, 2000

• Employer notice period
• 57.   The notice of termination under section 54
  shall be given,
• at least one week before the termination, if the
  employees period of employment is less than one
  year
• at least two weeks before the termination, if the
  employees period of employment is one year or
  more and fewer than three years
• (c) at least three weeks before the
  termination, if the employees period of
  employment is three years or more and fewer than
  four years
• (d) at least four weeks before the termination,
  if the employees period of employment is four
  years or more and fewer than five years

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The Employment Standards Act, 2000
Employer notice period (Continued) (e) at least
five weeks before the termination, if
theemployees period of employment is five
yearsor more and fewer than six years (f) at
least six weeks before the termination, if the
employees period of employment issix years or
more and fewer than seven years (g) at least
seven weeks before the termination, if the
employees period of employment is seven years or
more and fewer than eight years or (h) at least
eight weeks before the termination, if the
employees period of employment is eight years or
more. 2000, c. 41, s. 57.
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The Employment Standards Act, 2000

• Pay instead of notice
• 61.  (1)  An employer may terminate the
  employmentof an employee without notice or with
  less noticethan is required under section 57 or
  58 if the employer,
• pays to the employee termination pay in a lump
  sum equal to the amount the employee would have
  been entitled to receive under section 60 had
  notice been given in accordance with that
  section and
• continues to make whatever benefit plan
  contributions would be required to be made in
  order to maintain the benefits to which the
  employee would have been entitled had he or she
  continued to be employed during the period of
  notice that he or she would otherwise have been
  entitled to receive.

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The Employment Standards Act, 2000

• Entitlement to severance pay
• 64.  (1)  An employer who severs an
  employmentrelationship with an employee shall
  payseverance pay to the employee if the
  employeewas employed by the employer for five
  years or more and,
• the severance occurred because of a permanent
  discontinuance of all or part of the employers
  business at an establishment and the employee is
  one of 50 or more employees who have their
  employment relationship severed within a
  six-month period as a result or
• the employer has a payroll of 2.5 million or
  more.

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The Employment Standards Act, 2000

• Calculating severance pay
• 65.  (1)  Severance pay under this section shall
  be calculated by multiplying the employees
  regular wages for a regular work week by the sum
  of,
• the number of years of employment the employee
  has completed and
• the number of months of employment not included
  in clause (a) that the employee has completed,
  divided by 12.

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Canada Labour Code

• DIVISION X
• INDIVIDUAL TERMINATIONS OF EMPLOYMENT
• Notice or wages in lieu of notice
• 230. (1) Except where subsection (2) applies, an
  employer who terminates the employment of an
  employee who has completed three consecutive
  months of continuous employment by the employer
  shall, except where the termination is by way of
  dismissal for just cause, give the employee
  either
• (a) notice in writing, at least two weeks before
  a date specified in the notice, of the employers
  intention to terminate his employment on that
  date, or
• (b) two weeks wages at his regular rate of wages
  for his regular hours of work, in lieu of the
  notice.

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Canada Labour Code

• DIVISION XI
• SEVERANCE PAY
• Minimum rate
• 235. (1) An employer who terminates the
  employment of an employee who has completed
  twelve consecutive months of continuous
  employment by the employer shall, except where
  the termination is by way of dismissal for just
  cause, pay to the employee the greater of
• (a) two days wages at the employees regular
  rate of wages for his regular hours of work in
  respect of each completed year of employment that
  is within the term of the employees continuous
  employment by the employer, and
• (b) five days wages at the employees regular
  rate of wages for his regular hours of work.

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REASONABLE NOTICE

• ? Employment Standards Act is a minimum only
• ? Ball park/range of notice
• ? Factors Age, Seniority, Length of Employment,
  other issues
• ? Month per year maxim Right or Wrong
• ? Bad faith damages
• ? Benefits Pension
• ? Disability Plan Issues

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HOW TO TERMINATE

• ? Written Notice
• ? Private Meeting, Little Said
• ? Respectful
• ? Make Notes
• ? Securing Confidential Information and Property
• ? Record of Employment in 5 days
• ? Termination Pay due in 7 days or next payroll
• ? Job Placement Assistance

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MANDATORY RETIREMENT
As of December 12, 2006,there is no mandatory
retirement at age 65in the Province of
OntarioWHAT DOES THIS MEAN?
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Willson Lewis LLP
EMPLOYMENT LAW HIRING, FIRING, AND
EVERYTHING IN BETWEEN
SATISFIED CLIENTS ARE OUR GREATEST
STRENGTH! Offering experienced counsel
practising in all aspects of civil and commercial
litigation including employment law,
construction, family, equine law, wrongful
dismissal, tax disputes, estate and property
disputes, and collections 1183 King Street West,
Suite 200, Toronto, Ontario M6K 3C5Tel 416
534-9504 Fax [phone] www.willsonlewis.com