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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.

  • 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.

  • 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
  • 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.

  • 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.

  • 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.

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 which 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.

  • 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.

  • 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.

  • 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.

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.

  • 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.

  • 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.

  • 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

  • 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.

  • 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. To arrange to speak with a skilled employment lawyer, please contact us by email at mlahert@sultanlawyers.com or by phone at (416) 214-5111.

  • 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.

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.

  • 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.
  • 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.

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 you 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.

  • 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. We can answer any questions you may have about your pay/benefit entitlement while on maternity leave and help in the event of a conflict. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.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 threating 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.

  • 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.

  • 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.

  • 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.

  • 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.

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.

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.

  • 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.