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Employment Issues Related to COVID-19

  • Can an employee refuse to come into work over a fear of being exposed or contracting COVID-19?

    While there are circumstances where an employee could refuse to work over fear of contracting or being exposed to COVID-19, employees should be careful to avoid refusing to work unreasonably. More specifically, if an employee’s workplace has been deemed essential and the employer has implemented reasonable safety precautions to reduce the risk of contracting COVID-19, the employee could face disciplinary action if they decide not to show up to work. It is important to note, however, that due to the current measures put in place by federal and provincial governments, more flexibility may be given to those refusing to work due to COVID-19 concerns.

    In Ontario, the Occupational Health and Safety Act (“OHSA”) protects employees’ rights with respect to refusing unsafe work. If a worker exercises their right to refuse unsafe work, management must investigate their concerns and attempt to rectify the employees’ issues. Until an investigation is completed (by management or an inspector from the Ministry of Labour), no other work is permitted in the affected area until the investigation is completed and employees are advised to continue working. Employers are prohibited from acts of reprisal (i.e. penalizing an employee) for attempting to enforce their rights either through the OHSA or the Employment Standards Act2000.

    If you believe your employer has penalized you (or otherwise retaliated against you) as a result of asserting your rights under the OHSA or in relation to safety issues during the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What should I do if I test positive for COVID-19?

    Notify your employer immediately about your results and ensure to self-isolate (quarantine) to avoid further spreading of the virus. Current advice is that quarantine should last at least 14 days however employees should seek the latest information from both Health authorities and their medical practitioner. It is also important to continue to update your employer. Courts expect that employers and employees will work cooperatively in facilitating a return to work. If you have any concerns regarding requests for information in relation to your medical leave, or if you believe your employer has acted in bad faith with respect to taking a medical leave during this time or terminating your employment during the COVID era and you are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer require me to use vacation days to cover any absences from work as a reaction to COVID-19?

    The short answer is yes.

    In Ontario, under the Employment Standards Act (ESA), employers are entitled to choose when an employee can take their vacation time. Employers may schedule vacations and require employees to take vacation time when it suits the needs of the workplace.

    An employee may also be able to use vacation days, sick days or banked overtime instead of taking unpaid time off.

    With respect to COVID-19, the Ontario government has implemented job-protected leaves. You can learn more about this here.

    With the above being said, if an employer does not have a history of ordering when an employee can go on vacation, the employee may be able to argue that the employer does not have a right to do so accordingly to the terms of employment (i.e. either as a result of the employment contract or general practice). Specifically, unliteral, fundamental changes to the terms of employment are generally illegal without employee agreement, and usually this in and of itself is insufficient without adequate compensation and/or notice. 

    If you have any questions relating to employment matters in the COVID-19 era, or if you have questions related to vacation, leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • If my employer tells me to stay home, do they have to pay me?

    While there are exceptions, if a business advises its employees to stay at home as a precaution, employees should be paid. This is because the employer has contracted for the person’s services and the person is willing, capable, and able to work.  Some instances in which this may not apply would be individuals who are subject to irregular shifts. This issue is further complicated by the fact that that multiple areas of law apply including statutory provisions and contractual law (through employment contracts and related policies). If you have any questions about your pay and/or benefit entitlements or are otherwise seeking legal advice with respect to your employment during COVID era, whether relating to layoffs, being fired, or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Temporary layoff vs. termination: What is the difference?

    A temporary layoff occurs when an employer cuts back or stops an employee’s work without ending their employment (for example, laying an employee off when there is a shortage of work). In Ontario, the Employment Standards Act, 2000 (ESA) sets out that a temporary layoff can last:

    • Not more than 13 weeks of layoff in any period of 20 consecutive weeks; or
    • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks (however with additional obligations from the employer)

    If an employee is laid off for a period longer than set out above, this would automatically result in a termination of employment, which will impose obligations on the employer (including the requirement to provide termination pay under both statutory and common law, where applicable). It is important to keep in mind that not every employer is able to rely on temporarily laying off their employees, as layoffs are generally speaking aimed at businesses that are cyclical in nature and where an employee and employer are found to have agreed to layoffs as a condition of their employment. The ESA defines a termination as the following:

    • An employee is terminated if the employer dismisses or stops employing an employee, including where an employee is no longer employed due to the bankruptcy or insolvency of the employer.

    When an employer terminates the employment of an employee must accordingly provide the employee with either written notice of termination, termination pay, or a combination of both. Employers often need to provide significantly more payments that what is described under the ESA as they are often subject to common law notice requirements. If you are unsure whether you have been fired or laid-off, or if you have any questions regarding layoffs, wrongful dismissal, or constructive dismissal, especially during the COVID-19 and are seeking legal advice please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer lay me off to avoid termination pay?

    Not necessarily.

    Employees should not assume that their employer can lay them off, as there are several decisions from courts which state that layoffs should not be used by employers unless it can be demonstrated that an employee has contracted for this with the employer (directly or indirectly). Specifically, unliteral, fundamental changes to the terms of employment are generally illegal without employee agreement, and usually this in and of itself is insufficient without adequate compensation and/or notice.   

    Having said this, many employers are relying on the “lay off”, specifically in this COVID-19 era.

    In proceeding this way, many employers are likely deciding to lay-off employees in the hope that either employees will agree with it (and they can then argue that there was not dispute about the legality) or, alternatively, a court will sympathize with employers because of the unforeseen nature of COVID-19 and its dramatic impact on the economy.

    While this may work, the reality is that employees can equally (and reasonably) argue that they should not be the ones to suffer as a result of the downturn, and in fact, this is a critical time when they need termination pay to support them and their families through this extraordinarily difficult time.  This is particularly the case since there is no telling how long it will take for an employee to find comparable employment in the COVID-19 era and termination pay is specifically intended to help employees during difficult transitionary periods (and to provide greater support when comparable employment is not plentiful).    

    Bottom line, one should not assume that an employer has an unrestricted right to lay-off and, in fact, being laid off may be viewed as an unjust removal of employees’ rights to economic support.

    Finally, and assuming a lay-off is deemed legal, if an employer does not return the employee to work within the timeframe allowed for under the law in the relevant province (and comply with any other conditions relating to layoffs), then the employer automatically becomes liable for termination pay.

    If you have concerns regarding your employer and how they have handled your employment during the COVID-19 outbreak, or if you believe you have been wrongfully dismissed or any other questions, please contact Toronto employment lawyersSultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Is there any financial assistance available if I am not eligible for regular employment insurance (EI)?

    On March 25, 2020, the Government of Canada announced the Canada Emergency Response Benefit (“CERB”) to support workers and businesses during the COVID-19 pandemic. The CERB is a taxable benefit and open to workers who have stopped working due to COVID-19 whether or not they are eligible for EI regular or sickness benefits.

    Those who qualify will be provided with $2,000.00 per month for up to four (4) months.

    This benefit is available to workers:

    • Residing in Canada, who are at least 15 years old;
    • Who have stopped working because of reasons related to COVID-19 or are eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019, and October 3, 2020;
    • Who had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application; and
    • Who have not quit their job voluntarily.

    Additionally, the government has also implemented Work-Sharing temporary special measures to support employers and workers affected by COVID-19.

    From March 15, 2020, until March 14, 2021, and not limited to one specific sector or industry, the Government of Canada is introducing the following temporary special measures:

    • Extension of the maximum possible duration of an agreement from 38 weeks to 76 weeks;
    • Mandatory cooling off period has been waived for employers who have already used the Work-Sharing program so that eligible employers may immediately enter into a new agreement;
    • Reduce the previous requirements for a Recovery Plan to a single line of text in the application form;
    • Reduce the requirement and expand eligibility to employers affected by accepting business who have been in business for only 1 year rather than 2, and eliminate the burden of having to provide sales/production figures at the same time; and
    • Expand eligibility for staff who are essential to recovery, Government Business Enterprises (GBEs) and non-for-profit organization employers.

    If you have any questions regarding the above as it relates to your employment, layoff, or termination, contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • My employment is considered non-essential. How will I get paid?

    Employees that are affected by the Government of Ontario’s order to close all “non-essential” businesses (starting March 25) such that they have no work are entitled to take a Declared Emergency Leave under Ontario’s Employment Standards Act (“ESA”). This is a statutory leave, meaning that the job is legally protected during this period.

    While there are specific rules relating to statutorily protected leaves of absence (including relating to benefit continuation), it is important to note that this is an unpaid leave.

    You can, however, with the support of a Record of Employment from your employer, apply to be granted Employment Insurance (EI) or Canada Emergency Response Benefit (CERB). Note that final approval of any application for these programs with Employment and Social Development Canada/Service Canada, not your employer.

    Some employers may decide to pay their employees if they are affected by the government order to close non-essential businesses or to offer a “top-up”, however, there is currently no legal obligation to do so.

    Employees that are affected by the Government of Ontario’s order to close all “non-essential” businesses (starting March 25, 2020) such that they have no work are entitled to take a Declared Emergency Leave under Ontario’s Employment Standards Act (“ESA”). This is a statutory leave, meaning that the job is legally protected during this period.

    While there are specific rules relating to statutorily protected leaves of absence (including relating to benefit continuation), it is important to note that this is an unpaid leave.

    You can, however, with the support of a Record of Employment from your employer, apply to be granted Employment Insurance (EI) or Canada Emergency Response Benefit (CERB). Note that final approval of any application for these programs with Employment and Social Development Canada/Service Canada, not your employer.

    Some employers may decide to pay their employees if they are affected by the government order to close non-essential businesses or to offer a “top-up”, however, there is currently no legal obligation to do so.

    Finally, it is worth noting that just because a company/organization is deemed non-essential does not mean that it must stop doing business. Rather, many non-essential businesses have found ways to continue to function while complying with COVID-19 requirements.

    This usually takes the form of remote working arrangements and replacing in-person interactions (whether with colleagues or customers/clients) with virtual options.

    It is accordingly conceivable that an employer may be able to offer continued employment through an adjustment of work arrangements. If this is the case, then employees may find that they are continuing to receive either full wages or, alternatively, are offered reduced hours.

    While some regions in the Province of Ontario will be moving towards Stage 2 of reopening the province as of Friday, June 12, 2020, it is important to stay up to date as to whether you can begin working again in the near future.

    If you have any questions relating to employment with an employer that has been deemed non-essential or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • If my employer terminated my employment during COVID-19, should I consider taking legal action?

    It may indeed be worth considering taking legal action against your former employer as you may be entitled to significant damages beyond what your employer has offered.   

    Having said this, and because there are many factors to consider before bringing a formal claim against an employer, such a decision should almost always be made only after conferring with trusted counsel.   

    Further, the rapidly evolving circumstances around COVID-19 present unique challenges and factors that should be added to the equation to determine what action to take against your employer. This may include a claim for a range of damages, including not just those relating to wrongful dismissal but also bad faith.    

    Independent legal advice can also help to ensure that an employer does not take advantage of the fear surrounding COVID-19 to take away from an employee’s rights.   

    If you have been had your employment terminated been laid off because of the COVID crisis or if you have any questions relating to your employment, whether relating to wrongful dismissal or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can my employer terminate my employment if the company closes because of Ontario's order to close all non-essential businesses?

    If a business/workplace is shut down in relation to COVID-19 and a worker is unable to work from home, then an employer might choose to trigger a temporary lay-off.  

    If an employer chooses to temporarily lay off an employee, then the employer will rely on one of two types of layoffs under Ontario’s Employment Standards Act (“ESA”). The two options are as follows: 

    • Up to 13 weeks of layoff in any period of 20 consecutive weeks
    • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks (employers under this longer layoff are required to provide ongoing support/payments to the employee) 

    If a layoff lasts longer than the time for the type of layoff for which you are placed, you are considered to have had your employment terminated, and you become entitled to all rights relating to termination pay and financial support in finding another job. 

    It’s important to note that, just because your employer chooses to trigger a layoff, it does not mean that you must accept it.  This is because layoffs are not appropriate for all employees or in all industries. For this reason, it is good to secure independent legal advice if you are the subject of a layoff.  

    If you have had your employment terminated or been laid-off because of COVID-19 and want to know your rights, or if you have any questions relating to your employment, layoff, wrongful dismissal or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I am an essential worker. Can my employer force me to undergo a specific medical procedure or test (i.e. a temperature check upon arrival at work)?

    The courts to date have generally held that employers are not entitled to force employees to undergo specific medical tests or procedures. This is because these kinds of requirements have been found to unfairly interfere with an individual’s rights to privacy and control over their own health.

    Having said this, there has been case law (in both unionized and non-unionized workplaces) which has indicated that employers may be able to require employees to take specific medical procedures/tests if it can be demonstrated that there is a sufficiently serious health issue and that the requirement will meaningfully assist with reducing such a risk.

    In the case of COVID-19, it is unclear, for example, whether a simple check of an employee’s temperature will help to reduce the risk to the public and/or workplace. This is because COVID-19 does not always result in expected symptoms and there can be a significant lag between when people contract the virus and when they become symptomatic.

    It is accordingly unclear whether there is sufficient evidence to demonstrate that any one specific action will contribute meaningfully to a safer workplace. Having said this, as more evidence is revealed, employers may be in a better position to demonstrate that requiring a medical procedure is reasonable on balance to maintain the safety of the workplace.

    If you have any questions relating to employment and health matters or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I'm an essential worker. Can I refuse to attend at work because of a fear of contracting COVID-19?

    Employment legislation across Canada supports employees in maintaining their health and safety. This includes responding to employee concerns relating to actual or perceived dangers at work.

    While there are some differences between provinces, generally all provinces allow employees to refuse work that they feel is dangerous. Any such refusal, however, must be deemed as reasonable.

    Where an employee’s workplace has been deemed essential and the employer has implemented reasonable safety precautions to reduce the risk of contracting COVID-19, the employee could face disciplinary action if they decide not to show up to work. It is important to note, however, that due to the current measures put in place by federal and provincial governments, more flexibility may be given to those refusing to work due to COVID-19 concerns.

    If you have any questions relating to employment and health matters or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can an employer use the fact that COVID-19 was unexpected to avoid obligations to employees?

    Much chatter has occurred respecting COVID-19 and force majeure. The idea is that the pandemic should allow individuals to back out of obligations under existing or forthcoming contracts.

    This is because force majeure is a legal concept which states that contracts should not be enforced when there is an unforeseeable event that makes carrying out the obligations under the contract impossible/near impossible.

    A similar concept is called “frustration” of contract. Again, the idea is that a party to an employment contract should not be required to follow through on their obligations because of extraordinary circumstances that are not the fault of either party.

    While employers may attempt to use this as a reason to avoid payment of wages, termination pay, or other obligations, it is important to keep in mind that establishing that a contract has been frustrated requires that specific criteria be met. This includes demonstrating not just that an extraordinary event occurred but also that it is not reasonably foreseeable that the relationship could continue as a result of this event.

    It is accordingly likely difficult to demonstrate that COVD-19 makes it impossible for the employment relationship to continue, particularly since we don’t know how long COVID-19 will have a negative impact on the labour market, on what specific sectors, and the extent of the damage in those sectors impacted.

    Determining whether force majeure or frustration of contract applies to any specific contract or employment relationship, therefore, requires a case-by-case analysis and a thorough review of whether alternative legal principles apply more accurately to the circumstances.

    The reason that this analysis is important is that if a court later determines that an employer misapplied a legal principle, it could result in significant damages payable to employees/former employees.

    If you have any questions relating to employment-related to COVID-19 or if you have questions related to leaves of absence, lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • How do I know if I am part of an "essential business"?

    Governments across Canada are providing ongoing and up-to-date lists of what businesses can re-open as provinces gradually re-open. These lists are important because they determine which businesses are permitted to open at what time during the COVID-19 crisis.

    The Government of Ontario indicated on May 19, 2020, that it started the first stage of its reopening plan which includes opening businesses that can immediately meet or modify operations to meet public health guidance and occupational health and safety requirements.

    COVID-19 is however rapidly advancing and governments across the country are periodically reviewing the effectiveness of the measures being implemented and it is possible that we may see continued revisions to the list of businesses that can reopen alongside essential businesses.

    While some regions of the Province of Ontario begin Stage 2 of reopening the province, employees should ensure that they are up to date with respect to the list of essential businesses and those that have been given the go-ahead to reopen, and how it may impact them, including with respect to their employment and potentially being laid off, wrongfully dismissed or otherwise.

    If you have any questions relating to COVID-19 and employment matters, whether relating to lay-offs, terminations of employment or otherwise, please contact Toronto employment lawyersSultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I've been laid off. How will this be classified on my Record of Employment to ensure I am entitled to EI?

    Due to circumstances relating to COVID-19, many employers have made the difficult decision to temporarily layoff their employees, until there is more clarity around the circumstances or until we resume our daily activities.

    When an employee is laid off or terminated, employers are required to submit a Record of Employment (“ROE”) to Service Canada. The ROE directs Service Canada on whether an employee is entitled to receive Employment Insurance (“EI”). When employers issue an ROE to Service Canada, they must code it appropriately. The code provided on the ROE also tells Service Canada whether the employee is entitled to EI (i.e. if the employee was terminated for cause, they will not be entitled to EI).

    The following are the codes employers have the choice of issuing on an ROE:

    • A – Work Shortage/End of Contract or Season
    • B – Strike or lockout
    • D – Illness or injury
    • E – Quit
    • F – Maternity
    • G – Retirement
    • H – Work Sharing
    • J – Apprentice training
    • K – Other
    • M – Dismissal
    • N – Leave of absence
    • P – Parental
    • Z – Compassionate care/Family caregiver

    Based on these codes, if an employer lays off an employee due to business slowdowns as a result of COVID-19, the most appropriate code to issue on the ROE would be code A – Work Shortage. It is important to note that layoffs and shortage of work are classified under the same code. If an employer codes the ROE appropriately, this will ensure that the laid-off employee will be entitled to receive EI benefits.

    If you have been recently laid off and have questions relating to your record of employment or otherwise, or if you have been terminated and want to know about your rights and entitlements, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • I have been temporarily laid off, but I was never told that I could be laid off and my contract makes no mention of layoff. What can I do?

    Employers in Canada do not have an unlimited right to lay off their employees.

    The biggest reason for this is Canadian courts believe employees should be provided with income support to find another job. Layoffs do not provide this. Rather, layoffs allow employers to suspend an employee’s work without any income support.

    Instead, the law has consistently stated that layoffs should only be used in limited circumstances, such as where an employee’s employment contract has specifically addressed this possibility.

    By contrast, termination of employment triggers a wide range of employer obligations, including pay relating to employment standards and, potentially, common law notice payments (which could be months of financial support), intended to financially support the employee until they find other employment.

    For this reason, where it is unclear whether an employee has agreed to be laid off (for example, where an employment contract does not address layoffs), and, despite this, an employer proceeds to layoff the employee, the employee may have a claim for constructive dismissal on the basis that he or she was laid off without an agreement in his or her contract allowing for this.

    If an employer violates a term of an employee’s contract, the employee may be successful in claiming that they have been constructively dismissed (and therefore that they should be provided with all the payments associated with termination).

    Specifically, constructive dismissal occurs when the unilateral action of an employer fundamentally alters an essential term of an employee’s contract such that a reasonable person would conclude that the employer no longer intends to be bound by the terms of the contract. Constructive dismissal does not, however, occur where the employee accepts the change(s) or does not make it known to the employer that he or she does not agree with the change.

    Employees who are successful in making a constructive dismissal claim would be entitled to damages as if their employment was terminated.

    If you have been laid off, had your employment terminated and/or want to understand your employment rights please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • If I agree to a temporary layoff during the COVID-19 pandemic, does that mean my employer can lay me off in the future?

    It is possible for you to agree to a temporary layoff, even if it does not form a part of your employment contract.

    To be legal, if an employee agrees to be temporarily laid off for a specific reason, such as COVID-19, this agreement should be clear and, preferably, in writing. The employee, however, should make it clear that they are agreeing to a layoff not as a permanent term of their employment, but instead in response to a specific and/or extraordinary situation.

    By putting these proper protections in place (i.e. a written agreement), an employee will be in a better position to refuse another layoff (i.e. after we pass the COVID-19 period) and, instead, insist that the employer should compensate them in the event of any stoppage of work. Specifically, they will be in a stronger position to claim all payments relating to termination of employment including employment standards payments and, depending on the terms of their employment contract, common law payments (which can be equal to several months/years of economic support).

    If you have been laid off, had your employment terminated and/or want to understand your employment rights please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Are temporary foreign workers required to self-isolate immediately upon landing in Canada, or are they permitted to travel to their final destination in Canada before self-isolating?

    Upon arrival in Canada, all travellers, including temporary foreign workers, will be screened for COVID-19 symptoms. If they are deemed to not have any symptoms consistent with COVID-19 and otherwise meet immigration entry requirements, they will be permitted to travel onwards to their final destination (whether this is via a domestic flight or otherwise). Subject to some specific exceptions (i.e. essential workers) they will be required to self-isolate for a minimum of fourteen (14) days.

    If however, the immigration/health officer determines that an individual has any symptoms consistent with COVID-19 upon arrival, depending on the severity of their condition, they may be placed in quarantine at the point of entry or, alternatively, will be sent to a local hospital.

    Once they have recovered, their admissibility to Canada will be assessed again and, subject to approval by the reviewing immigration/health officer for health and immigration matters, they will be permitted to travel to their final destination.

    If you have any questions relating to your employment during the COVID-19 era or related immigration matters, please contact Toronto immigration and employment lawyers, Sultan Lawyers at (416) 214-5111 or via email at mlahert@sultanlawyers.com.

  • What should I do if an employee comes to work when they have been instructed to self-isolate?

    It is vital for employers to take immediate action and ensure that the employee is safely escorted out of the office/workplace. To keep other employees safe, it is important to confirm where the employee had been present in the office and whether the employee came into contact with any other workers during their time in the office or workplace.

    Employers should also take appropriate measures to clean and sanitize the workplace, including any areas where the employee was present in the office.

    Further, if the employee encountered any other workers, employers should take initiative and advise workers that may have been exposed to COVID-19, to go home and self-isolate.

    If you are an employer and have an employee that refuses to self-isolate and you are looking for legal advice, or if you have any questions relating to your employees and COVID-19, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Do I qualify for CERB if I have two jobs?

    To be eligible to apply for CERB, individuals must demonstrate that they have stopped working for a reason related to COVID-19. Reasons can specifically include the following:

    • An individual lost their job;
    • An individual is in quarantine or sick because of COVID-19;
    • An individual is taking care of others because they are in quarantine or sick because of COVID-19; and/or
    • An individual is taking care of children or other dependants because their care facility is closed due to COVID-19.

    Setting this aside, the federal government has clarified that an individual can receive an income of up to $1000 per month and still be eligible for CERB. This includes employment or self-employment income. Therefore, as an example, if an individual has a part-time job that pays them about $900 a month, and they have been laid off from their full-time job, this individual will still qualify to receive CERB.

    If you have any questions relating to your eligibility for CERB, or any questions relating to your employment in the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can employers close their business due to safety concerns related to COVID-19?

    As per Ontario’s Occupational Health and Safety Act, employers have an obligation to ensure they are providing a safe working environment for their employees. Therefore, if an employer believes that their business has been compromised with respect to maintaining a safe working environment for their employees, an employer may close their business until the safety concerns are addressed.

    Whether an employer is obligated to provide compensation to their employees during this time will depend on a variety of factors, such as applicable employment law legislation and the language of existing employment contracts.

    If you are an employer and want legal advice on the obligation to your employees in the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • As an employer, is it possible to avoid laying off my employees due to the negative impacts on my business in relation to COVID-19?

    The federal government has introduced the Canada Emergency Wage Subsidy (“CEWS”). Eligible employers may receive a subsidy of up to 75% of their employees’ wages for up to twelve (12) weeks. The CEWS was implemented to enable employers to keep their employees on the payroll while contributing to a smoother transition to post-COVID-19 operations.

    There are a number of requirements that must be met in order to be eligible for CEWS including demonstrating a sufficient loss of revenue. Employers must be able to demonstrate that each employee is entitled to the subsidy and that they meet CRA payroll requirements.

    Eligible employers must specifically demonstrate that they have met the requirements of an “eligible revenue reduction”, which can be calculated by comparing the eligible revenue (i.e. reduced revenue) with their baseline revenue. The federal government has outlined that your baseline revenue is:

    • The revenue earned in the corresponding month in 2019; or
    • The average of the revenue earned in January and February 2020.

    Specifically, employers will need to demonstrate a decrease in revenue of 15% or more for March 2020 and 30% or more for April 2020 and May 2020.

    If you are an employer and you are looking to determine avenues to consider prior to layoffs or terminations, or if you have any other employment-related questions amidst the COVID era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • My employment has been terminated in the middle of the COVID-19 pandemic. Do I still need to keep looking for work to be entitled to a full termination package?

    Yes.

    Employees who have had their employment terminated have a duty to make efforts to find another job, and thereby reduce their “damages”.

    These efforts are measured on the standard of “reasonableness”. This means that employees are expected to try to find another job, even in a less than ideal labour market.

    Having said this, employees are not expected to make limitless efforts, nor are they expected to accept employment that is not comparable to their previous role. Instead, an employee who has had their employment terminated are expected to do what they can to find alternative, comparable employment. We also recommend keeping a record of these efforts in case this becomes a barrier in reaching a settlement with your former employer.

    If you have had your employment terminated and have concerns about your duty to mitigate, or you feel you may have been wrongfully dismissed in the COVID-19 era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I have been re-called to work. Can I refuse to return?

    Yes.

    An employer cannot force an employee to return to work.

    However, if you have been re-called and refuse to return to work because of concerns unrelated to your health and safety, or in relation to a job-protected leave, your employer may treat your refusal as a resignation. Similarly, if you refuse to return for health and safety-related reasons and the Ministry of Labour deems the workplace safe, your employer may have the right to treat your refusal as a resignation.

    This distinction is important because employees who are deemed to have resigned are not be entitled to any termination or severance pay and will likely not have access to Employment Insurance benefits.

    If you have been re-called to work and have any concerns, or your employer has treated your refusal to return as a resignation of your employment, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I have been temporarily laid off. Am I entitled to receive payment for my accrued but unused vacation?

    No.

    When an employee is temporarily laid off, the employment relationship remains intact and continues throughout the layoff period. Given this, employers do not have to pay their employees for any accrued vacation time or provide any sort of compensation.

    If you have been temporarily laid off and want to better understand your rights, or are concerned that your layoff may trigger a termination of your employment, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can an employee request vacation during the temporary layoff period?

    Yes.

    An employee may request to take vacation time during a temporary layoff.  An employee that requests vacation time is entitled to be paid their full remuneration throughout the vacation period. Employers may, however, refuse the request if they do not have the ability to pay the employee for their vacation period.

    If you have been temporarily laid off in the COVID-19 era and have been denied vacation, or if you are an employer and your employees have approached you about using vacation time while on a temporary layoff, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • My employee has tested positive for COVID-19. As an employer, am I required to notify any government authorities?

    Pursuant to Ontario’s Occupational Health and Safety Act (“OHSA”), an employer has reporting obligations when a worker is exposed to the COVID-19 virus in the workplace. An employer specifically must do the following:

    • Inform the Ministry of Labour in writing within four (4) days of being advised that an employee has tested positive for the COVID-19 virus;
    • Notify the Workplace Safety and Insurance Board (“WSIB”) that an employee has tested positive for the COVID-19 virus;
    • Notify the workplace’s Joint Health and Safety Committee; and
    • Notify the trade union (if applicable).

    If your employee has tested positive for COVID-19 and you wish to better understand your legal obligations, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I contracted the COVID-19 virus at work. Can I sue my employer?

    Generally, no.

    Where an employee falls ill at work with the COVID-19 virus, in most cases the employee will not be able to sue their employer.

    This is because workers’ compensation legislation, such as the Workplace Safety and Insurance Act, 1997 (the “Act”) in Ontario, provides for a no-fault compensation plan for workers who are injured or contract an illness in the workplace.

    For example, employees in Ontario that contract COVID-19 while at work may file a claim with the Workplace Safety and Insurance Board (“WSIB”) to collect compensation benefits during their leave.

    The legislation essentially acts as a bar to employees who wish to bring legal action against their employer.

    Despite this, there may be circumstances in which an employee can bring a claim against their employer, such as where the employer was negligent in its conduct.

    If you have sustained a work-related injury or illness, including in relation to the COVID-19 virus, and you want to better understand the legal remedies available to you, or if you require assistance in filing a claim, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer provide me with a supplement to my Employment Insurance (“EI”) benefits during the COVID-19 pandemic?

    Yes.

    The Government of Canada is allowing employers to register Supplemental Unemployment Benefit (“SUB”) plans with Service Canada that would allow them to top-up EI benefits for laid-off employees during the COVID-19 pandemic.

    While employers are permitted to top-up employees’ EI benefits, they are not permitted to top-up the Canada Emergency Response Benefit (“CERB”).

    Employers that wish to provide a top-up must submit a SUB plan to Service Canada prior to its effective date and must provide written notice of any changes to the plan within thirty (30) days of the changes coming into effect.

    If you have been temporarily laid-off or fired and want clarity regarding the government supports available, or feel that you may have been wrongfully terminated, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • It has been 13 weeks since my temporary layoff and I have not been recalled. Has my employment been terminated?

    In most cases, thirteen (13) weeks is the maximum allowable duration for a temporary layoff under the Ontario’s Employment Standards Act (“ESA”). Absent a recall at the end of the thirteen (13) week period, an employee on a temporary layoff will be deemed to have their employment terminated, triggering an employee’s entitlement to termination pay and severance pay (if applicable).

    This rule changed on May 29, 2020, following the introduction of a new regulation.

    Under the new regulation, employees are automatically deemed to be on Infectious Disease Emergency Leave at any time during the “COVID-19 period” when they do not perform their employment duties due to their hours being temporarily reduced or eliminated.

    This has effectively stopped the clock and removed the deadline for employers to recall employees for the duration of the “COVID-19 period”.

    This applies retroactively to changes implemented after March 1, 2020.

    If you have not been recalled to work and would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What is Infectious Disease Emergency Leave?

    Infectious Disease Emergency Leave is an unpaid, job-protected emergency leave for employees during the COVID-19 period. Unlike other leaves under the ESA, there are no maximum “leave” days.

    Under the legislative change, employees are automatically deemed to be on infectious leave if:

    • Their hours have been reduced due to a COVID-19 slowdown
    • Their hours have been cut completely due to a COVID-19 slowdown
    • They were laid off from their employment on or after March 1, 2020

    If you would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • How long is the COVID-19 period?

    Since the Infectious Disease Emergency Leave regulation applies retroactively, the COVID-19 period is considered in effect from March 1, 2020, and will end six weeks after Ontario’s declared emergency ends.

    The Government recently extended the current declared emergency until July 15, meaning the regulation will be operative until at least August 26, 2020.

    An extension of the state of emergency is possible, and this would automatically extend the COVID-19 period.

    If you would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does my employer have to continue my benefits while I am on Infectious Disease Emergency Leave?

    Unless benefits were discontinued prior to May 29, 2020, employees on Infectious Disease Emergency Leave must continue participating in benefit plans unless the employee elects in writing not to do so.

    Employers who did not continue their employees’ participation in a benefits plan when their employees were laid off prior to May 29, 2020, do not have to re-instate those benefits.

    If you would like to understand your benefit entitlement or would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does my employer have to provide me with notice before placing me on Infectious Disease Emergency Leave?

    Under the new regulation, employees are automatically deemed to be on leave at any time that they are laid off or have their hours temporarily reduced or eliminated for reasons related to COVID-19.

    Employers are not required to provide notice to employees when they are deemed to be on leave under this regulation. Employees do not need to inform their employers of an intention to take this leave if the reasons are related to being laid off or a reduction of hours of work.

    Employees should notify their employers if they need to go on this leave for the following reasons:

    • They are under medical investigation, supervision, or treatment for COVID-19
    • They are in isolation or in quarantine in accordance with public health direction or information
    • They need to care for a family member who is sick
    • They need to provide care to a person for a reason related to COVID-19 such as a daycare closure
    • They are unable to return to Ontario because of travel restrictions

    An employee will also be entitled to Infectious Emergency Leave for the reasons above.

    If you believe you may need to remain off work following a recall for reasons related to the above or otherwise or would like to review your eligibility for Infectious Disease Emergency Leave, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Am I entitled to be recalled to my position at the end of the COVID-19 period?

    It is expected that employers will recall their employees by the end of the COVID-19 period. However, after the COVID-19 period, the regular rules regarding layoff under the ESA will apply. This means that an employer may place the employee on a temporary layoff in accordance with the ESA at the end of the COVID-19 period.

    It is important to remember that not every employer is able to temporarily layoff their employees, as layoffs are generally speaking aimed at businesses that are cyclical in nature or where an employee and employer agree to layoffs as a condition of their employment.

    If you have questions regarding layoffs, a recall, a wrongful dismissal or a constructive dismissal, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employment be terminated while I am on Infectious Disease Emergency Leave?

    Employees that are deemed to be on Infectious Disease Emergency Leave are on a job-protected leave. This means that employers cannot terminate the employment of employees on such a leave unless the termination is solely for reasons unrelated to the leave.

    Employees on Infectious Disease Emergency Leave have a right to return to their job, or a comparable job at the conclusion of the leave.

    If you have been terminated while on a job-protected leave and would like to understand the legal remedies available to you, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does this regulation impact a constructive dismissal claim?

    Typically, a change in hours or a layoff may entitle an employee to claim constructive dismissal and their rights to termination and severance pay (if applicable). The new regulation removes the right to claim constructive dismissal under the ESA.

    However, a constructive dismissal claim can still go forward under the common law.

    If you believe you may have been constructively dismissed or would like to review your options in relation to a constructive dismissal during the COVID-19 era, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Is a doctor’s note required for Infectious Disease Emergency Leave?

    An employee will not be required to provide a medical note if they need to take Infectious Disease Emergency Leave.

    In mid-March, the Ontario government introduced legislation that waived requirements for doctor’s notes.

    That being said, a balance is still required. An employer may seek a doctor’s note confirming that it is safe for an employee to return to the workplace after testing positive for COVID-19.

    If you have questions regarding the Infectious Disease Emergency Leave, or if your employer is insisting that you provide medical documentation, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

Constructive Dismissal

  • What is constructive dismissal in Canada?

    In Canada, constructive dismissal can be raised in one of two ways. The first instance occurs when an employer’s single act violates an essential term of an employee’s employment contract. The second occurs when a series of actions that, when combined, demonstrate the employer’s intention to breach the employment contract and no longer abide by it. If you believe the actions of your employer may amount to constructive dismissal and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Do I have a constructive dismissal case?

    Generally, when an employer unilaterally reduces employee compensation or significantly alters job duties, the employee can choose to reject the changes and treat their employment as ended. If your employer has created a hostile environment by fundamentally breaching your employment contract, you may be eligible to claim constructive dismissal. Depending on the severity of the change, Canadian courts will accept your claim if a fundamental change has been made to your contract after it was signed. This means that if something was agreed upon, has now changed, your claim is valid. If your employer has created a hostile work environment, decreased your compensation, or has taken any other unilateral action against you and you are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What can you receive if you are constructively dismissed?

    If an employer is found to have constructively dismissed an employee, the employee is entitled to a severance package because the employee may be able to treat the employment contract as being at an end. This entitles the employee to notice from the employer as if the employment contract had been terminated. If such notice is not provided, then the employee should be compensated with a common law pay-in-lieu of notice. While there is not a precise formulation to calculate the content of the package, there are a few factors that can be considered. These factors include the following:

    • Employee’s age
    • Length of employment
    • Character of employment
    • Availability of similar employment

    If you believe you have a claim against your employer for constructive dismissal and are seeking advice related to remedies (i.e., compensation), please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can I claim constructive dismissal even after I resign?

    Yes. If you resigned because the workplace became an intimidating environment or because of a serious breach of the terms of your contract, then it may indeed be possible to claim constructive dismissal and pursue associated damages on the basis that the employer’s actions resulted in a forced departure. Keep in mind however that not all changes to the employment relationship will give rise to constructive dismissal. The breach must be “fundamental” to the contract, and what precisely is “fundamental” is determined on a case-by-case basis. If you are successful at a claim for constructive dismissal you are entitled to termination payments as if the employer had proactively terminated your employment and potentially other damages, including in relation to the way you were treated at work. It is important to act reasonably when considering bringing forward a constructive dismissal claim, otherwise it could result in a court determining that you resigned and were not dismissed from your employment.  What is “reasonable” is determined on a case-by-case and that’s why it’s important to receive proper advice from an employment lawyer. If you have resigned or are thinking about resigning and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What is the average payout for constructive dismissal?

    Constructive dismissal occurs where an employer does not fire an employee but instead changes the working conditions for an employee to the extent that it is considered a termination of employment in law. In this situation, an employee is forced to whether to stay at work and accept the changes or to walk away and claim constructive dismissal.  This is one of the hardest decisions an employee is likely to have to make in their career and for this reason, it should only be made with proper employment law expertise. If you are successful at claiming constructive dismissal how much can you get? Compensation for a constructive dismissal claim is determined on a case-by-case basis (including whether you have a contract restricting your entitlements), however, it would not be unusual to see that an employee receives one month of income (including bonuses etc.) per year of service.  This can be paid out in the form of a lump sum or as a continuation of salary/benefits. Specifically, in the event your employment is found to have been terminated (through constructive dismissal), courts aim to provide enough compensation based on an assessment of how long it will likely take you to find another job. While the courts will often look at a range of factors when setting this amount, the following four factors tend to have the greatest impact on determining the payments:

    • Age;
    • The type of role you had;
    • The length of service; and
    • The availability of similar employment.

    It is important to remember that dismissed employees have a general duty to make reasonable efforts to mitigate their losses in income by actively seeking comparable employment after their dismissal and that any compensation amounts which exceeds the minimum notice and severance pay obligations under the applicable employment standards legislation are subject to reduction once you obtain new employment and start to earn a new income. This is another reason why it’s important to seek proper employment law counsel to maximize the chance that you can negotiate a favourable deal. If you are thinking about making a claim against your former employer and are seeking legal advice in relation to awards, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What do I do if my employer fires me?

    If your employer terminates your employment, the law wants to ensure that you are provided with enough compensation so that you have enough time to secure another job without incurring any losses. Because there is a lot of confusion/misinformation about what an employee should receive on termination, we strongly recommend that an employee have any termination package or “offer” reviewed by an employment lawyer to ensure that the compensation provided for in the package meets your entitlements under the law. This is important to ensure that you were not wrongfully dismissed in the way you were treated and/or not being provided with enough compensation. Many individuals are not aware that, for example, while there are minimum notice/severance pay requirements under employment standards, there is a range of other things that employers must provide employees depending on the situation, which can result in significantly larger payments. It’s therefore important to pay attention to any deadlines provided in any offer letter you receive from your employer and not to sign off on anything until you are comfortable you are receiving sufficient compensation. This is specifically important because if you sign off there is a good chance that you are giving up your rights to sue for anything relating to your employment, including not just termination pay but also any other issues which may have occurred, such as loss of overtime pay or harassment. This approach can help you deal with any wrongful dismissal effectively. If you have been fired and are seeking legal advice in relation to legal recourse, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

Just Cause for Termination

  • What is “Just Cause” termination?

    In Ontario, an employer can terminate an employee’s employment for just cause, which if upheld, will deny the employee to statutory termination, severance pay or common law pay-in-lieu of notice. Common examples of conduct that can support a just cause termination include misconduct, disobedience or incompetence. Just cause is difficult to authenticate 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 depending on the facts of the case, file a complaint with the Human Rights Tribunal or Ministry of Labour. If you have been fired for “just cause” and are seeking legal advice related to the matter, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Am I entitled to severance pay if terminated for “Just Cause”?

    If an employer terminates an employee’s employment for just cause, the employee will not be entitled to notice of dismissal, termination, or severance pay. Additionally, employees who are terminated for cause may not be eligible to collect Employment Insurance (EI) benefits. For this reason, instances of “for cause” termination is serious and require the attention of competent employment law counsel. If you are seeking legal advice in relation to “just cause” termination, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Is it hard to fight back if my employer fires me for cause?

    If an employee’s employment is terminated “for cause”, the employer has the right to avoid providing any notice of termination or severance pay.  This is a serious problem as you can find yourself fired without any notice and without compensation. Is there anything I can do? Yes! It is very difficult for an employer to prove termination for cause and this includes job performance. Employers need to specifically prove that it is fair and proportionate in the circumstances to deny an employee compensation for a termination of employment. While there are many more examples, the following are the kinds of conduct that employers have identified as grounds for terminating “for cause”:

    • Fraud or theft;
    • Intentional violation of any law or regulation;
    • Harassing or abusive towards other employees, clients or customers;
    • Continuous failure to perform duties owed to the company (although this generally requires consistent and careful follow up by the employer to try to rectify the poor performance); and
    • Certain off-duty misconduct.

    While the ultimate decision of whether a termination for cause is appropriate in any specific circumstances would be for a judge to decide, more often than not employees have a good chance of successfully fighting against a termination for cause and receiving compensation. If you do believe that you have been the victim of unjust dismissal, we strongly recommend that you seek proper employment law counsel to push back against an employer who is attempting to take away your rights through a termination for cause. If you believe your employer cannot prove termination for cause and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my boss fire me if I called in sick and lied about it?

    The simple answer is yes. Courts have generally held across Canada that discharge is an appropriate penalty for employees making false medical claims and/or lying about being sick. The reason is that false claims are deemed to take advantage of the employer’s reliance on an employee’s good faith, and therefore courts and arbitrators generally take a strong stance and impose harsh penalties to deter other employees from doing the same. Having said this, termination for cause is considered a harsh penalty in employment law and therefore it is almost always worth a review with a qualified employment lawyer to determine how to respond if you ever find yourself in this situation. If you are seeking legal advice in relation to the termination of your employment, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

Notice of Termination/Severance Packages

  • What is 'reasonable notice'?

    Reasonable notice describes what employees are entitled to at the time of the termination of their employment. The law states that, unless an employee has agreed in an employment contract to something else (and that contract is enforceable), employees whose employment is terminated without cause are entitled to a be provided with “reasonable notice” of the termination of their employment.  Reasonable notice is essentially enough support for the employee to find alternative comparable employment. When calculating the reasonable notice period, there are three main areas to focus on: the legislation, the employment contract, and the law as developed through legal decisions. The most important factor to keep in mind is that employment standards are only a minimum and are not reasonable notice of termination. While there is no fixed/specific number, it is not unreasonable to expect that an employee could receive between 3 and 5 weeks per year of service (with more for short service), up to a maximum of twenty-four months. In most cases, the most influential factors in determining reasonable notice include the employee’s age, length of service, position (and related responsibilities), and the availability of similar employment. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you have been terminated and are seeking advice in relation to your entitlements, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What are the minimum notice periods for termination without cause in Ontario?

    The amount of notice an employee is entitled to when terminated without cause in Ontario can be found in both the statutory law and the common law. There are minimum amounts required by the Employment Standards’ Act (the “ESA”) as well as standard entitlements based on established case law, or common law, in the province. Under the ESA, minimum amounts are set as follows:

    Period of Employment Notice Required
    Less than 1 year 1 week
    1 year, but less than 3 years 2 weeks
    3 years, but less than 4 years 3 weeks
    4 years, but less than 5 years 4 weeks
    5 years, but less than 6 years 5 weeks
    6 years, but less than 7 years 6 weeks
    7 years, but less than 8 years 7 weeks
    8 years or more 8 weeks

    While these amounts are the minimum that employees are entitled to, the common law has also developed standards with respect to reasonable notice. In most cases, the common law will award 1 to 2 months per year of service in lieu of notice. Most often, employees will receive payment in lieu of notice, otherwise known as termination pay. If an employer fails to meet their obligations to a terminated employee, the employee may be able to establish a successful claim for wrongful dismissal. It’s important to note that the common-law notice period may be overridden by a termination clause in an employment contract, so long as the clause meets the minimum ESA standards and is found to be enforceable. If you are looking to have your termination clause reviewed or believe that you may be entitled to reasonable notice and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • How does mass termination of employment affect notice?

    Notice of termination under employment standards legislation may be affected when a company or organization terminates the employment of fifty (50) or more employees within a four-week period, otherwise known as a mass termination. When this occurs, the amount of notice employees are entitled to is based on the number of employees who have had their employment terminated rather than on the employees’ length of employment. Where:

    • 50 to 199 employees are terminated, eight weeks’ notice must be given;
    • 200 to 499 employees are terminated, twelve weeks’ notice must be given; or
    • 500 or more employees are terminated, sixteen weeks’ notice must be given.

    However, the mass-termination rule does not apply in the following circumstances:

    • The number of employees being terminated represents less than 10% of the employees who have been employed for at least three months; and
    • None of the terminations are caused by the permanent discontinuance of all or part of employer’s business

    It is important to keep in mind that the above is employment standards only which is a minimum requirement and does not reflect common law notice which employees are entitled to unless they have agreed to an enforceable employment contract that removes the right to common law. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you were terminated as part of a mass termination and are seeking legal advice with respect to your entitlements, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What is severance pay, and who is entitled to it?

    Severance pay is paid out over and above termination pay, which is the pay a terminated employee is entitled to in lieu of sufficient notice. Severance pay is reserved for specific situations, such as long-term employees of companies of a certain size. Specifically, employees are entitled to severance pay in the following circumstances:

    • The employee has at least 5 years of service with the employer; and
    • The employer has a payroll of at least $2.5 million; or
    • The employee is one of 50 or more employees whose employment was terminated within a 6-month period.

    There are also certain exemptions from the entitlement to severance pay, including situations where the employee:

    • refused an offer of “reasonable alternative employment” with the employer;
    • had their employment severed because of a permanent closure of all or part of the employer’s business that the employer can show was caused by the economic effects of a strike;
    • was employed in construction or in the on-site maintenance of buildings, structures, roads, sewers, pipelines, mains, tunnels or other works; and
    • was guilty of wilful misconduct, disobedience or wilful neglect of duty that was not trivial and was not condoned by the employer (otherwise known as “just cause” termination).

    Severance pay is calculated as follows: Multiply the employee’s regular wages for a workweek by the sum of:

    • the number of completed years of employment; and
    • the number of completed months of employment divided by 12 for a year that is not completed.

    So, if an employee earned $1200 per week and had been employed for 6 years and 8 months at the time of termination, severance would be calculated as follows: Weekly earnings: $1200 Number of full years of employment: 6 8 months divided by 12 (for the partial year of employment): 0.66 6.66 x $1200 = $7,992 owing for severance pay. If you believe you are entitled to a severance package and are seeking legal advice, please contact Toronto Employment Lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What if I am not happy with the termination package being offered to me by my employer?

    If your employment has been terminated by your employer and you are unhappy with the termination package being offered, do not sign any contracts, agreements, or packages without first consulting with an employment lawyer. In fact, it is wise to always consult with an employment lawyer before signing any documents provided by your employer.  An employment lawyer can help determine if the termination package offered by your employer is unreasonable and can help negotiate a better package should you be entitled to more than is being offered. If you believe you may be entitled to a longer notice period or require assistance negotiating a termination package and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What should I do if my employer asks me to sign a release after terminating my employment?

    When terminating an employee, it is common for an employer to request that the employee sign a release of some kind. This will generally be presented to the employee at the time of termination after the employer has reviewed the terms of the termination. It is important that employees understand that they are not required to sign any documentation at that moment. They are permitted to take the time to review the terms being offered and sign the release at a later time. From the employee’s perspective, taking this time is encouraged. However, if you have already signed a release, all hope is not lost. An experienced employment lawyer can review your circumstances and make you aware of your options. If you are presented with a termination package and a release, it is strongly advised that you have an experienced employment lawyer thoroughly review all documentation and advise on how you should proceed. Signing the release means that you are giving up certain rights (such as the ability to bring a lawsuit against your employer) in exchange for certain benefits (such as termination pay or an extended benefits period). Before signing any documentation, it is important to be sure that you are receiving everything to which you are entitled. If you are looking to have your release reviewed and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • When is an employee not entitled to notice or compensation in lieu of notice?

    There are several situations where reasonable notice or compensation in lieu of notice is not required, including where:

    • The employee resigns or retires;
    • The employee is dismissed for just cause;
    • Termination rights and obligations are already provided in an employment contract; or
    • The employee is employed for a fixed term.

    For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you believe that you are entitled to notice or compensation and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

Wrongful Dismissal

  • What is wrongful dismissal in Ontario?

    In Ontario, an employee is wrongfully dismissed if their employer terminates their employment without giving them proper notice of termination or the equivalent compensation in place of the notice. It is important to note that employers can terminate an employee at any time, as long as they provide the proper amount of notice or pay in lieu of notice. It is a common misconception that an employee cannot be terminated without reason after they finish their probationary period. If you did not receive proper notice of termination and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What is the difference between 'wrongful dismissal', 'constructive dismissal', and 'unjust dismissal'?

    Each of these terms has distinct meanings, and it is important to understand the differences. Here, we provide an overview of the terminology and the circumstances in which they apply. Wrongful DismissalWrongful dismissal” is the general term used to describe any situation where an employer has explicitly terminated the employment of one or more of its workers without providing that worker with her or his entitlements under the law. These entitlements include reasonable notice or pay in lieu, and in some cases, severance pay. Constructive DismissalConstructive dismissal” refers to a situation in which an employer has not intentionally terminated an employee’s employment, however, the employer acts in such a way as to negate the employment contract or create an untenable working situation for the employee. An example of constructive dismissal would be if an employer changed the function of an employee’s job completely and cut back on their wages by 50%. Another example would be an employer who was aware of harassment against an employee yet took no action to intervene, therefore creating a hostile work environment for the employee, forcing them to quit. Unjust Dismissal The term “unjust dismissal” legally refers to a specific recourse in the Canada Labour Code that is available only to employees of federally regulated workplaces who have completed at least 12 consecutive months of continuous employment with the same employer and who believe their dismissal to be unwarranted. This means that if an employee works in a federally regulated industry, they have additional protection from unjust dismissal by their employer after 12 months of service in the following circumstances:

    • The employee files a complaint alleging unjust dismissal at a Labour Program office no later than 90 days from the date of the dismissal;
    • The employee is not a manager;
    • The employee is not covered by a collective agreement; and
    • The reason for the dismissal does not stem from economic considerations such as lack of work or discontinuance of a function.

    If you are unsure whether you have been ‘wrongfully dismissed’, ‘constructively dismissed’ or ‘unjustly dismissed’ and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • I’ve been fired. Does my employer have to tell me why I was terminated?

    The simple answer is no. In Ontario, employers do not have an obligation to give a reason for terminating an employment relationship, however, an employer is obligated to provide the employee with reasonable notice, as per Ontario’s Employment Standards Act.  This notice can be provided either through the provision of working notice or pay in lieu of working notice. Despite this, employees can always ask the employer what the reason for termination is. It is important to note that while no reason for termination is legally required by an employer, there are particular circumstances in which a termination could be deemed unlawful, such as:

    1. For reasons that appear to be retaliatory in nature following your insistence on enforcing your entitlement under the Employment Standards Act;
    2. For a reason that is considered discriminatory based on one of the protected grounds under the Ontario Human Rights Code; and
    3. For inquiring about a health and safety issue or refusing to do unsafe work as protected by the Occupational Health and Safety Act 

    If you believe that you were unlawfully terminated and you would like to obtain legal advice, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can an employee take their employer to court for wrongful dismissal instead of filing a claim with the Ministry of Labour?

    An employee can definitely decide to bring a wrongful dismissal claim against their employer. With that being said, it is important to note that a claim for wrongful dismissal filed with the court as well as a claim with the Ministry of Labour cannot occur simultaneously. Therefore, an employee should carefully consider their options before deciding which option is best for their circumstances. If you have been terminated and are looking for legal advice to determine what course of action will be the most beneficial for you, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Am I entitled to additional damages if my employer acted in bad faith when I was terminated?

    You may be. Ontario courts have found several instances of employers acting with what is known as “bad faith” during the course of termination and have awarded the terminated employees additional damages as a result. For example, if an employer terminates an employee for cause, meaning the employee is not entitled to reasonable notice or pay in lieu, the employer must be able to establish evidence of the cause. In one case, an employer terminated a long-term senior employee after alleging a broad claim of “fraud” against the employee. The employee brought a claim for wrongful dismissal, and the employer countersued. In the end, the court found that the employer had no basis for the claim of fraud, and awarded the employee significant damages, not only for payment in lieu of notice but also aggravated damages due to the employer’s egregious conduct. It is important for any employee facing termination, for cause or otherwise, to seek out the advice of a skilled employment lawyer before agreeing to any terms, especially if they feel that their employer is not acting in good faith. If you believe your employer acted in bad faith at the time of your termination and are seeking legal advice with respect to possible remedies, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

Workplace Harrassment

  • What do I do if I’ve been harassed at work?

    Workplace harassment occurs when someone says something or behaves in a way towards another that is known or ought to be known to be unwelcome. Workplace harassment may include offensive comments or jokes, bullying, aggressive behaviour, inappropriate staring, sexual harassment, isolating or, for example, making fun of a worker because of their gender identity. If you feel you are being harassed at work, then you should consider telling your supervisor, manager or the person elected by your employer to deal with such issues. If you feel uncomfortable telling this person, you should consider informing the next available person on the seniority ladder. If you work in a unionized environment, consider contacting your union representative. If you have any questions about whether what you are experiencing at work may be considered harassment and possibly constructive/wrongful dismissal, what your rights are and/or how to respond, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.com.

  • What is "workplace harassment"?

    The Occupational Health and Safety Act defines workplace harassment as engaging in a course of vexatious comments or conduct against a worker in a workplace that is known or ought reasonably to be known is unwelcome. The definition of workplace harassment includes sexual harassment, psychological harassment, and physical harassment. Further, the definition of workplace harassment is broad enough to include all types of harassment prohibited under Ontario’s Human Rights Code.  Examples of workplace harassment can include (but are not limited to):

    • Making remarks, jokes, or innuendos that demean, ridicule, intimidate, or offend;
    • Displaying or circulating offensive pictures or materials in print or electronic form;
    • Bullying;
    • Repeated offensive or intimidating communications; or
    • Sexual harassment.

    If you believe you have been a victim of workplace harassment and you are looking to obtain legal advice, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What are your employer's obligations in terms of workplace harassment?

    In Ontario, the Occupational Health and Safety Act sets out the rights and duties for the health and safety of all parties in the workplace. It is important for employers to address any unwanted behaviours early to minimize the potential for workplace harassment to turn into workplace violence. The Occupational Health and Safety Act sets minimum standards and requirements that employers must abide by when dealing with violence and harassment in the workplace.  Employers are obligated to:

    • have a workplace harassment policy in place, and review it as necessary (at least annually);
    • have a workplace harassment program or policy that outlines: how to make a complaint or report an incident of workplace harassment and how those complaints/incidents will be investigated and handled;
    • provide information and instruction to workers about the workplace harassment policies and programs in place;
    • ensure investigations are conducted following incidents or complaints of workplace harassment; and
    • inform the complainant worker and the alleged harasser of the results of the investigation in writing and any further actions that will need to be taken.

    If you believe you have been harassed at work and your employer did not fulfil their duties according to the Occupational Health and Safety Act, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What is a hostile/poisoned work environment?

    In Ontario, the Human Rights Code (the “Code”) prohibits the creation of a hostile/poisoned work environment. The Code defines this as an environment that has become intolerable in a way that the discriminatory conduct or attitude spreads throughout the workplace entirely. In the context of human rights, a poisoned work environment can be found in two circumstances:

    1. If there has been a particularly egregious incident; or
    2. If there has been a series of wrongful behaviour which has created a hostile/poisoned work environment that is persistent or repeated.

    To give this some further meaning, to determine whether a poisoned work environment exists, relevant factors include the number of comments or incidents; the nature of the comments; the seriousness of the comments and whether, if taken together, the comments or incidents create an environment where an individual endures discriminatory behaviour. As mentioned above, it is important to note that a poisoned work environment can be found even if there is a single or “stand-alone” incident, if the incident is particularly egregious, as was decided by the Court of Appeal for Ontario in General Motors of Canada Limited v. Johnson, 2013 ONCA 502. If you believe that you may be working in a poisoned and therefore intolerable work environment, seek legal advice. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What is reprisal?

    Reprisal is a situation in which an employee is threatened, punished or fired for asking about or trying to enforce a legal right in accordance with applicable employment law legislation. An example of reprisal in the workplace could be if an employee refused to perform a task because the work was unsafe and was then punished by the employer. An employer cannot fire, threaten to fire, suspend or impose any other penalty on the employee for enforcing their rights as set out under the Occupational Health and Safety Act. In Ontario, legislation that explicitly prohibits reprisal by an employer include the Employment Standards Act, the Ontario Human Rights Code and the Occupational Health and Safety Act. If you believe you have been a victim of reprisal and you are looking to obtain legal advice, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

Human Rights in the Workplace

  • Can I be fired for taking too many sick days?

    Employees in Ontario are entitled to a minimum of three (3) personal illness days per calendar year under the Employment Standards Act without the need for a doctor’s note. Employers must accommodate their employees’ needs to take sick leave and cannot fire an employee for requesting or using the days. Beyond employment standards, the Human Rights Code applies and requires an employer to provide sufficient leave to the employee as may be medically required, unless to do so would cause the employer ‘undue hardship’. Proving ‘undue hardship’ is, however, difficult and requires an employer to prove that they have done everything they can to support the employee and that any further support would result in significant difficulty and/or expense to the employer. For this reason, an employer is at serious risk of a human rights claim if they fire an employee for exercising their legal right to take sick leave. Furthermore, it is important to note that, while an employer cannot fire you for taking too many sick days, they may terminate your employment while you are on sick leave, provided that the reasons for termination are unrelated to the illness. It is strongly advised that employees should seek legal advice in any circumstance involving negative treatment, including being fired, in relation to a leave of absence for illness. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you believe your termination is a reprisal for taking a medical leave and are seeking legal advice with respect to possible remedies, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What can a potential employer ask me in an interview?

    In Ontario, the Ontario Human Rights Code (“the Code”) protects a potential candidate from human rights violations that can arise as part of the hiring process. Interviews are intended to provide an opportunity for an employer to get to know a prospective employee and to assess their fitness for the position. During the interview process, an employer can ask about a candidates’ previous experience to determine if she or he is qualified for the position they are applying for. Employers are however not permitted by law to ask questions relating to any grounds that are protected by the Code. Employers must, therefore, refrain from asking questions about a candidates’ age, family/marital status, ethnic background, religion, whether a candidate has a disability, or where a candidate was born. If an employer asks a question relating to any of these protected grounds, the candidate does not have to provide an answer. An example of illegal behaviour would be if a potential employer asks a visible minority candidate whether they would be able to deal with racial slurs while the employer does not ask this of non-visible minority applicants. Instead, the employer can ask all candidates how they would deal with a difficult client or challenging customers. If an individual feels as though they did not get a position because they did not answer one of these questions, then there may be a legitimate claim and basis for filing a human rights complaint. If you feel that you were treated unfairly in an interview, or that you were denied a position because of human rights discrimination and you are looking for help and/or legal advice, contact Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can a potential employer ask me if I have a criminal record?

    In Ontario, the Police Record Checks Reform Act sets out the parameters in which employers may ask about your criminal record. This greatly depends on why the employer is asking and what kind of information they are looking for. An employer may ask if you have been convicted of a crime that you have received a record suspension for. They may decide not to hire you because you have a criminal record. However, if you are the recipient of a record suspension for a crime you have been convicted of, an employer cannot ask about that crime. You may also honestly answer any inquiries into prior convictions by stating that you do not have a criminal record. Given the above, there are exceptions and some employers can refuse to hire you if you were convicted of a provincial offence or an offence that received a record suspension if it in any way relates to the position you have applied for. Employers must be careful that the decision not to hire the candidate is not based on one of the grounds protected by the Ontario Human Rights Code. The law states that an employer can refuse to hire a candidate based on their criminal conviction(s) if it is reasonable, necessary, and makes sense given what the duties of the job are. For example, an employer may decide not to hire a potential candidate for a driver position if that candidate has been convicted of driving offences (i.e. provincial offences). If you have any questions about police record checks and obtaining employment and you are looking for legal advice, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • When can an employer ask for a police record check?

    The Ontario Police Record Checks Reform Act was specifically designed to standardize the process of obtaining criminal record checks and to prevent the disclosure of unnecessary information. This Act provides more control to employees and the release of information about their criminal record to a potential employer. At the interview stage, a potential employer can, in certain circumstances, ask a candidate to get a police record check. An employer can also in certain circumstances ask for a police record check from an employee once employment has commenced. In either case, however, the employer must clearly communicate why a request for a record check is required (i.e. if there were any changes to the employment conditions, such as a new project working with children). The candidate or employee must consent to the check in writing, and the employer must specify the type of criminal record check to be conducted. Once the criminal record check has been completed, the results are only to be disclosed to the employee or candidate and are only to be provided to an employer with the employee or candidate’s written consent. The three types of police record checks that an employer or potential employer may request are as follows: 1) a criminal record check 2) a criminal record and judicial matters check 3) a vulnerable sector check (i.e. occupations that involve working with children, seniors, or other individuals who may be vulnerable)  It is important to note that once a potential employer receives a criminal record check, the employer must remain in compliance with human rights laws in relying on the record when making their hiring decision. If you believe you were not offered a position based on a criminal record check you provided to a potential employer, or if you believe you have been the victim of wrongful dismissal because of a criminal record check, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What can I do if I am being discriminated against at work?

    Ontario human rights legislation protects employees from being discriminated against for certain reasons by their employers. Employers cannot discriminate against you because of your: (1) Race, (2) Ancestry, (3) Place of origin, (4) Ethnic origin, (5) Citizenship, (6) Religion, (7) Sex, (8) Sexual orientation, (9) Gender expression/Gender identity, (10) Age, (11) Family status/Marital status, or (12) Disability. These are known as protected grounds under Ontario’s Human Rights Code. If you are being discriminated against at work, it is important to keep a record of everything that has happened.  It is advisable to keep a notebook and take notes of instances or incidents by date. Making a record of discriminatory behaviour soon after it takes place will also make things easier to remember. If the behaviour occurs over a period of time, keeping a record of this will assist in establishing a pattern of behaviour. If you are experiencing discrimination at work and you are looking for help and/or legal advice, contact Toronto lawyers Sultan Lawyers to help you through this process at 416-214-5111 or via email at mlahert@sultanlawyers.com.

Leaves of Absence

  • Is my employer required to pay me while on maternity leave?

    Employers are not required to pay their employees while they are on maternity leave. However, some employers may choose to ‘top-up’ an employee’s salary during their leave. Employers, unless they’re bound by a collective agreement or contract, do not have to offer a ‘top-up’ plan. Through the Employment Insurance Act, eligible employees may be entitled to employment insurance (“EI”) benefits to cover their entire maternity leave period (including parental and/or pregnancy). Employees who are on maternity leave are also entitled to continue participation in certain benefit plans (i.e. pension plans, medical plans etc.). Employees who are on maternity leave also continue to earn credit for length of service/seniority in their position. If you have any questions about your pay and/or benefit entitlements while on maternity leave or are seeking legal advice in the event of a conflict, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employer force me to return to work against the advice of my doctor?

    No. It is not for your employer to determine whether you can work or not. An employer cannot require you to do something that is contrary to the opinion of your doctor. Regardless of the amount of time your doctor prescribes, your employer must give you that time off. Furthermore, your employer cannot engage in recourse by threatening you for taking time off, disciplining you for your medical leave, or treating your medical leave as a resignation. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you believe your employer has made a reprisal against you for not returning to work and are seeking legal advice for recourse, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Does my employer have to pay me while I am on sick leave?

    No, your employer is not required to pay you while you are on sick leave. In Ontario, employees are entitled to three (3) full days of unpaid sick leave every calendar year under the Employment Standards Act. However, an employer may be required to pay an employee on sick leave where the terms of the employment agreement provide for paid sick leave. Employees can apply for Employment Insurance sickness benefits, or for more prolonged illnesses, short-term and long-term disability benefits (which may be a part of an employee’s benefits package). For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you have any questions about your pay and/or benefit entitlements while on maternity leave or are seeking legal advice in the event of a conflict, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • What information can my employer request from me while I am on sick leave?

    Generally, an employer cannot directly ask about an employee’s diagnosis when they are taking sick leave; however, the employer is entitled to information that would assist the employer with determining the following:

    • The legitimacy of the employee’s absence;
    • Understanding the employee’s prognosis; and
    • Safely returning the employee to the workplace.

    For this reason, if you have any concerns regarding requests for information in relation to an absence, then it is highly advisable to seek legal advice with an experienced employment lawyer. For further details to determine entitlement in your specific case contact a reliable and well-informed employment lawyer. If you have any concerns regarding requests for information in relation to your medical leave and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Is my employer allowed to fire me while I am on maternity leave?

    While it may be surprising to hear this, the answer is yes. Having said this, although you may be fired during your maternity leave, the fact that you are on maternity leave cannot be a reason/factor for the employer in firing you. This means that an employer cannot use the excuse that they, for example, terminated for performance reasons, but that the decision was a combination of this and the fact that you were, for example, about to begin maternity leave or are on leave. What this means is that it is illegal for an employer to use any of the following to be a factor (even 1%) in making a decision to terminate a person’s employment: pregnancy (of them or their partner), a plan to go onto maternity leave, being on leave, or having returned from leave. If you feel that maternity leave was a factor in the manner an employer has treated you, then you have a range of powerful legal options to you which should be explored so that you are in the best position to decide how to proceed. If you believe your termination was a reprisal for going on maternity leave and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • Can my employment be terminated while I am on a sick leave?

    An employer can fire an employee who is on sick leave or planning to take sick leave, but in most circumstances, it is illegal for the sick leave to play a part in the decision to terminate the person’s employment. So, for example, if an employer is downsizing for economic reasons during an employee’s sick leave and the employee is fired only because of the downsizing, it may not be considered wrongful dismissal. Sick leaves can be requested at any time without advance notice, regardless of how busy the business is at the time of the need for sick leave. An employer is legally required to support an employee who is ill/disabled to the point of what is known in law as “undue hardship”. What this means is that an employer is expected to do as much as possible, short of damaging the business, to support the employee. An example of this would be offering the employee modified hours, modified duties and/or ensuring that the employee has time off when needed to support their illness. Having said this, an employer’s obligation is not unlimited. This means that an employer may be able to legally fire an employee who is disabled/ill if they can prove that they have done everything possible to support the employee and that continued support will risk damaging the business. If you feel that you may have been badly treated or wrongfully dismissed in relation to a sick leave, we would be happy to help you determine if you have a claim and how best to secure your rights. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • When should an employer issue a Record of Employment in cases of approved leaves of employment (i.e. sick leaves, maternity leaves, etc.)?

    As with a termination of employment, employers are obligated to provide a Record of Employment shortly after any interruption at work, including any leaves of absence. Specifically, Section 14(2) of the Employment Insurance Regulations (SOR/96-332) states that an employer must issue a Record of Employment within five days from the date the employee takes his/her approved leave of absence from employment. If you have concerns relating to a Record of Employment, termination of employment, or otherwise, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com. Simply provide us with your details in our contact form and we respond shortly with a free call back.

Securing an Employment Lawyer

  • How do I know if I need an employment lawyer?

    Simply put, you should consider seeking advice from an employment lawyer whenever you feel you may have an important issue that could affect the viability of your employment relationship. While not all situations warrant legal advice, it’s often worth checking in even if you are not sure, just because there are often quick/innovative approaches that can help to resolve matters before they escalate and become irreparable. To avoid this risk, if you think you may need an employment lawyer and are unsure, our suggestion is to reach out to one and have a discussion to determine whether it is worth it on balance to engage in a consultation with an employment lawyer. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.com.

  • What can I expect in the first consultation and how much will it cost?

    While Sultan Lawyers does not provide free consultations, it is for very specific reasons to benefit our clients. Specifically, we insist on serving the interests of our clients with the utmost quality, and in a manner that is transparent from our first interaction. We, therefore, want to ensure that our involvement in a case is strictly limited to where we provide value and nothing more. In addition, because our consultations are so comprehensive, our clients often walk away with enough information and strategic advice so that they can proceed to secure a resolution of the matter without further involvement on our part (thereby saving additional costs). Our consultations are structured for maximum value and effectiveness. One of our skilled lawyers (as opposed to a paralegal or other individual) will review the client’s information in advance of the consultation whenever possible. At the one-on-one meeting (which can take place in-person or over the telephone), the lawyer will gather further relevant details from the client and provide accurate legal advice. The lawyer will also provide a post-meeting follow-up in writing. Gathering all relevant information in advance is also important to ensuring that we provide sound and accurate advice to our clients, as well as being compliant with The Law Society of Ontario. While generally the work done to prepare for and participate in the consultation is quite substantial, we only charge our clients a flat rate equal to one hour of our time for a consultation to ensure that we remain accessible. This flat rate will not increase even if the consultation itself extends beyond one hour. If you have any questions about our consultation process or would like to be booked with one of our lawyers, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • How do I make sure I’m prepared for a consultation with a lawyer?

    Here are some tips if you have a consultation with an employment lawyer and you want to ensure that you are prepared and get the answers to the pressing questions you have:

    • Write a short summary of the events leading up to the issue you are concerned about (i.e. termination of employment) – this may help you remember specific details that you would like to address with the lawyer during your consultation.
    • Add a timeline, especially in instances where you may have concerns about issues such as unpaid overtime or unpaid bonuses; having a record of these dates and times will help the lawyer to assess the strength of any case. If your case involves anything related to harassment, keep a timeline of when the harassment commenced along with any/all events of harassment that took place.
    • At Sultan Lawyers, we ask our client to send us any relevant documents prior to the consultation so they can be reviewed by the lawyer you are meeting with in advance. This is helpful so that the lawyer you are meeting with already has a sense of your matter and to ensure that the time is spent focused on the important matters.

    For consultations relating to employment matters, documents that we typically request prior to the initial meeting include the following (where available):

      • Any employment contract;
      • Any correspondence relating to a job offer;
      • Any promotion letters or fresh contracts;
      • Discipline warnings (if applicable);
      • Termination letter (if applicable);
      • Any relevant documents and/or correspondence;
      • A copy of any offer or release presented by the employer.
    • In a matter relating to severance, it may be helpful to have a figure (dollar amount) in mind that you believe is fair. Our lawyers will let you know what a reasonable range is in terms of a severance offer and will tailor that based on the information provided.
    • If the case is complicated (involves many events and facts), and/or if your matter is human rights or employment-related, it may also be best to put together a list of witnesses that can vouch for your position on the matter. This can help with discussions with the lawyer regarding the value of evidence that individuals may have and how this may impact your case (positively or negatively).
    • Bring a copy of your government-issued identification. A lawyer must confirm your identity, as required by the Law Society of Ontario (LSO). The firm will take a copy of your identification to keep on your client file with the firm. This is only to confirm your identity and to comply with the rules and regulations of the LSO.
    • Try to bring an open mind to the consultation. Often, situations relating to employment can be emotional, and this can cause us to have very strong feelings which are often one-sided. An employment lawyer will advise you of their professional opinion, and sometimes this may be something that you may not want to hear. If you really do not like what an employment lawyer told you at one consultation, you can always consider getting a second opinion from another firm.
    • Our lawyers provide a detailed summary after the consultation. You will receive a review of the discussion that took place during the consultation and our recommended next steps on how to move forward. You do not have to worry about taking notes during the consultation, however, you are always welcome to if that makes you feel more comfortable. Feel free to request a paper and pen at our office when you come in for your consultation.
    • Be comfortable. Wear comfortable clothes and bring a friend or family member if you wish. This is your time to get off your chest the issues pertaining to your employment. Consultations are meant to be easy going and to be a safe (and confidential) place to discuss all matters in a manner that is not possible in any other venue where there would not be solicitor-client privilege. At Sultan Lawyers, we take the consultation process seriously and it is of utmost importance for us to ensure that we provide a supportive and comfortable environment in which we can provide our professional opinion and guidance to our clients.

    If you have an employment-related matter, whether related to termination, wrongful dismissal or otherwise, contact Toronto employment lawyer Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com. Simply provide us with your contact information and we will respond shortly with a free call back.

  • What documents would my employment lawyer be interested in seeing?

    At Sultan Lawyers, we send new clients a list requesting specific documents in advance of the initial consultation to help give our lawyers as many details as possible in advance, so that they already have an overall picture of your circumstances when you meet. For employment law matters, we typically request the following documents and find these documents to be the most useful for our lawyers to assess your case thoroughly:

    • Photo Identification (driver’s license, passport, etc.). This is a requirement by the Law Society of Ontario that lawyers confirm the identity of their clients by reviewing a piece of government-issued identification and retaining a copy for the firms’ records
    • Your employment contract, and any/all correspondence and/or documents that were exchanged around the time of hire
    • Termination letter
    • Any letters, memos, emails, or warnings from your employer
    • Documents or correspondence which show how you attempted to claim your rights as a worker
    • Any notes or timelines you have written down (especially in cases of harassment where there are multiple instances of harassment)
    • Contact information for co-workers or other witnesses who may have seen/heard anything that is related to your termination
    • T4 or recent pay stubs
    • Any other relevant documentation that you may believe will help us better assess your case

    If you have an employment-related matter, whether relating to harassment, termination, wrongful dismissal, or other concerns relating to your workplace, contact Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com. Simply provide us with your contact information and we respond with a free call back.

  • Can I hire a paralegal instead of a lawyer for taking my employer to Small Claims Court?

    Yes, individuals can hire a paralegal instead of a lawyer to represent them in Small Claims Court. The maximum amount you can claim in the Small Claims Court is $35,000.00 as of January 2020. The amount was substantially increased from the previous maximum of $25,000.00. At Sultan Lawyers, we offer the services of both lawyers and paralegals, so clients have a range of options to service their cases and to ensure an appropriate match of legal advisor to the specific case. We will review a potential case with you and will recommend, if appropriate, that it be brought to the Small Claims Court.  The Court can provide advantages, as it is often speedier and less expensive than the process to be followed in Superior Court. The Small Claims Court can also significantly reduce risks associated with potential cost awards in the event of a loss at trial. If you have an employment matter but are not sure whether you should be going to Small Claims Court or Superior Court, you should have a lawyer or paralegal review your termination package to determine the best route forward in your specific circumstances. At Sultan Lawyers, we would be happy to do this for you at your initial consultation. If you have an employment matter, whether related to the termination of employment, wrongful dismissal, or otherwise, and want to know what the best options for you are, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com. Simply provide us with your details in our contact form and we will respond shortly with a free call back.

Employment Standards Minimums

  • How many sick days am I entitled to in Ontario?

    Most employees can take up to 3 sick days of unpaid job-protected leave per year for medical reasons including personal illness, injury or medical emergency. It is irrelevant whether the illness, injury or medical emergency was caused by the employee or external factors beyond their control. The entitlement to 3 sick days per year is triggered once an employee has worked for their employer for at least 2 consecutive weeks. Of course, sick days are often unanticipated. Regardless of this fact, employers have a duty to accommodate an employee’s legitimate request to take sick leave. While unexpected leaves can be a source of frustration for employers, it is illegal for the employer to fire the employee simply because of the inconvenience caused to the business as a result of the sick leave. Courts have specifically made it clear that if the employee’s sick leave plays any role in an employer’s decision to terminate the employee’s employment, an employer can be subject to significant liability from an employment standards perspective (i.e. wrongful dismissal) and, potentially, as a result of a violation of human rights protection. If you believe you have been wrongfully dismissed as a result of your sick leave and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email to mlahert@sultanlawyers.com.

  • My employment was recently terminated. What am I entitled to?

    In Ontario, if an employee’s employment has been terminated without cause then they are entitled to, at minimum, sufficient notice of the termination of their employment. The Employment Standards Act (“ESA”) sets out the minimum amount of notice that an employee is entitled to. The ESA also imposes severance pay obligations on certain employers. Under the ESA, employees could be entitled to up to 26 weeks of severance pay. It is important to eep in mind that the ESA sets out only the minimum entitlements and depending on factors including the nature of an employee’s employment contract (if any), an employee may be entitled to significantly more than the minimum entitlements under the ESA. If your employment has been terminated and you want to ensure that your rights are respected, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • What is the "Three-Hour Rule"?

    Ontario’s Employment Standards Act sets out that if an employee who regularly works more than three hours a day comes to work but works less than three hours, despite being able to work longer, the employer shall pay the employee wages for at least three hours. If you believe your employer has not compensated you appropriately and are looking for help and/or legal advice, please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can an employee contract out of their entitlements pursuant to the Employment Standards Act?

    No. An employee cannot contract out of their entitlements pursuant to Ontario’s Employment Standards Act and an employer cannot force an employee to give up their rights under the Employment Standards Act. If you believe your employer may have attempted to take away your rights under the Employment Standards Act and are looking for help and/or legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Can employees receive more than what they are entitled to pursuant to the Employment Standards Act?

    Yes. The Employment Standards Act makes it clear that if an employee has an employment contract that contains a provision entitling them to more than what they are entitled to pursuant to the Employment Standards Act, then the provision providing for greater rights will apply. For example, the Employment Standards Act sets out that after one year of service an employee is entitled to two weeks’ notice of the termination of their employment. If however, an employee’s employment contract indicates that after one year of service the employee will be entitled to three week’s notice of the termination of their employment, then the provision in the employment contract will apply. If you believe your employer has not abided by the terms of an employment contract and are seeking legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • Are employers legally obligated to pay interns?

    In Ontario, the Employment Standards Act sets out protections specifically for employees. However, some classes of workers do not fall into the definition of “employee” and the Employment Standards Act does not apply to these separate classes of workers. Someone called an intern will generally be considered to be an employee under the ESA (and therefore will need to be paid) if they:

    • receive training from an employer
    • are being trained in a skill that is used by the employer’s employees

    However, the ESA does not apply to an individual who performs work that is under a program approved by a:

    • college of applied arts and technology or a university
    • private career college registered under the Private Career Colleges Act, 2005

    As such, workers under these categories do not need to be paid. If you think that your employer should be paying you for your internship and are looking to obtain legal advice, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.

  • When should an employer issue a Record of Employment?

    In short, an employer is obligated to provide a Record of Employment shortly after any interruption in employment, whatever the reasons. Specifically, Section 19(3)(i) of the Employment Insurance Regulations (SOR/96-332) states that an employer must issue a Record of Employment (“ROE”) within 5 days after the employee’s earnings are “interrupted”. An interruption of earnings occurs where, following a period of employment with an employer, an insured person is laid off or separated (i.e. terminated or resigned) from that employment and has a period of seven or more consecutive days during which no work is performed for that employer and no earnings that arise from that employment. If you have concerns relating to a Record of Employment, termination of employment, or otherwise, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com. Simply provide us with your contact information and we will respond with a free call back.