What is employment law and how can an employment lawyer help you?
Employment law controls how employers treat employees, former employees, and applicants for employment. Employment law deals with all aspects of employer-employee relations. Collective bargaining is an exception. Labor law governs collective bargaining.
Employment law involves a broad array of issues, including wrongful dismissal, disability, workplace health and safety, discrimination, sexual harassment, pension plans and retirement.
An employment lawyer can advise you about the rights you have as a result of the employment relationship. If you believe that you have been wrongfully dismissed, an employment lawyer may be able to assist you with commencing a wrongful dismissal action for damages.
Your employment contract
Additionally, an employment lawyer can help you review your employment contract before you start your position. It is important to have your employment contract reviewed by an employment lawyer to ensure you understand the exact nature of your employment. Many times the employer may classify an employee as a specific type of working in the employment contract. For example, you may be classified as an independent contract, dependent contractor, or an employee.
These terms may sound familiar, but the intricacies and particular consequences of these categories of workers may be unclear. It is important to talk to an employment lawyer to ensure that you understand what your duties and obligations are as a result of the employment relationship you are in. There are different responsibilities when it comes to remitting CPP and EI depending on the nature of your employment. The same applies to Canada Revenue Agency deductions and remittance.
Get advice about your dismissal
An employment lawyer can also review your termination letter and the circumstances of your dismissal and help you identify whether or not you have been wrongfully dismissed. As an employee, you are entitled at law to pursue your rights and to receive appropriate compensation if you have been dismissed without just cause. If the termination letter states that you have been dismissed and you are entitled to receive termination pay or severance pay, you should consult with an employment lawyers about the amounts being offered.
The Ministry of Labour has useful tools which may be useful in exploring what termination pay or severance pay you may be entitled to receive. The termination tool and the severance tool are good starting tools. Remember that these tools are not meant to substitute legal advice from an employment lawyer.
Although it may appear that you are receiving a reasonable amount of compensation in the form of termination pay and severance pay as outlined in the Employment Standards Act, there are many instances when you may be entitled to receive significantly higher compensation in accordance with common law.
Constructive dismissal and other difficult scenarios
An employment lawyer can also help you identify if you are the subject of a constructive dismissal. A constructive dismissal may have occurred if there is a fundamental change to the employment relationship without the employee’s implied or explicit consent. Your employer cannot unilaterally make a significant change to your hours of employment or to your pay.
Constructive dismissal cases are fact-specific and should be cautiously scrutinized by an employment lawyer. For example, your employer cannot decrease your pay significantly for the same hours worked, or increase your hours worked significantly for the same amount of pay. Constructive dismissal cases are determined on the facts of each case. If you are an employee and you believe you have been constructively dismissed, you should consider consulting an employment lawyer.
As an employer it is important to consult with an employment lawyer if you are planning on firing an employee. You need to understand the risks of the dismissal and your company needs to plan accordingly. If you are being sued for wrongful dismissal by a former employee, an employment lawyer can assist you in defending your case. Furthermore, if the employee is entitled to bonus pay, this may have an effect on the compensation and reasonable notice or pay in lieu of notice the employee may be entitled to receive.
What is labour law and how can an employment lawyer help you?
Labour law covers the relationship between unions, unionized employees and employers. Union representation allows employees to bargain collectively with employers for rights and benefits. Unionized employees are entitled to various remedies as outlined by the collective agreement of the union the employee is part of.
There may be instances when the employee must first deal with the union representative and commence a grievance. Suing in by way of civil action in Superior Court may not be possible due to arbitration being the set method of resolving disputes according to the collective agreement.
An employment lawyer can offer an opinion on your grievance and also possibly assist in dealing with any misconduct by the parties involved. At a minimum, an employment lawyer can advise you of possible pitfalls in your dealings with your union representative.
Furthermore, an employment lawyer can provide insight into the overall grievance process to ensure you are not surprised by anything you may encounter. Even though an employee may be a member of a union, there are many instances when the employee may not understand his or her full legal rights. An employment lawyer can assist you in understanding your legal rights.
Should you retain an employment lawyer to sue your former employer?
The first step in making the decision to litigate or not is to consult with an employment lawyer. At a minimum, you should know your rights before making a decision to take legal action. There are many instances when you may be angry or very upset about your dismissal. You may even feel tempted to resign in anger and to move on. Any rash decisions after being fired can have serious costs. For example, it is not prudent to sign any releases given by the employer even if they contain offers for severance pay or termination pay without first consulting with an employment lawyer.
Furthermore, it is important not to resign in anger as a result of the actions of your employer. Your employer cannot mistreat you or cause you to believe that you have no choice but to resign. You cannot be pressured to resign, and your employer cannot give you the option to voluntarily resign or face consequences such as negative comments on your record of employment.
A resignation must be voluntary. If you believe that you have been improperly pressured to resign, you should discuss the circumstances of your resignation with an employment lawyer.
Alternatively, if you are thinking of resigning and moving on to a better job, you must ensure that you are able to take the next position without violating any potential non-compete clauses in your employment contract. A clause restricting the ability of an employee to work ability to work for a competitor is also known as a restrictive covenant.
A restrictive covenant must be reasonable. In other words, it may prevent an employee from working for a competitor within a reasonable distance from the previous employer and within a reasonable period of time after the relationship ends.
Do not act without legal advice
An employment lawyer can assist an employee in determining if a restrictive covenant is reasonable and enforceable. Employers should also consider consulting with an employment lawyer before they prepare a restrictive covenant to ensure that it is legal. If a restrictive covenant is invalid and likely to be deemed unenforceable, then it will not protect the employer from a disgruntled employee leaving to join a competitor. In other words, the employer may falsely believe that the company’s interests are protected when in fact they are not.
The termination of employment can be an emotionally challenging time filled with worry about your financial affairs. Potential legal action should be carefully analyzed with the assistance of an experienced employment lawyer. If you rush into a lawsuit unrepresented, you may be found responsible for the legal costs of starting the action against your employer. It is important to consult an employment lawyer about the law in Ontario and whether or not it is prudent to proceed with litigation.
What can an employment lawyer do for employers?
An experienced employment lawyer understands the needs of employers in addition to the rights of employees. Employers need to be able to adjust the size of their workforce and to make personnel decisions as needed. It is important to have in place hiring practices that protect your company from possible litigation. One practice that may employers overlook is to have proper written employment contracts with employees. An employment contract can set out the notice your employee may be entitled to receive upon termination.
It may also set out the duties of the employee and deals with work created by the employee, restrictive covenants, and duties after employment. If an employee is highly specialized and important to your company, an improper employee resignation can have devastating consequences to your business.
An employment contract can set out proper times for the employee to give notice of his or her departure to ensure your company is not damaged. Additionally, a restrictive covenant in an employment contract should be scrutinized by an employment lawyer to ensure that it is valid. This is very important with employees who may be enticed to leave your company and commence employment with a competitor.
Your company will benefit from an employment lawyer
An employment lawyer can also assist your company in ensure that hiring practices do not expose your company to potential litigation. The classification of workers as employees or contractors may have consequences on CPP and EI deductions, and Canada Revenue Agency remittance. The duties you have toward your workers and government agencies are tied to the classification of your employees. Specifically, the nature of the employment relationship is more important than the label ascribed in an agreement with the employee.
An employment lawyer can also conduct an audit of your business timing and remuneration policies to ensure your company is compliant with the Employment Standards Act and Regulations for hours worked, and overtime pay. This can avoid potential overtime claims by employees and Employment Standards Act complaints.
It might also be prudent to implement a workplace policy manual for employees to review and adhere to while employment at your company. The policy manual may outline the various duties of the employees and various responsibilities they have while working for your business.
Whether you are an employee or an employer, an employment lawyer can assist you with any employment law issues you may encounter.
The information on this website is for informative purposes only. It is not legal advice. Finally, you can only retain a lawyer after a consultation. If you need a wrongful dismissal lawyer or if you have any other employment law issues, call me at: 416 323 3614