We are seasoned employment lawyers. Over the years, we have represented employees and employers in a range of employment matters, including wrongful dismissal claims, constructive dismissal claims, workplace harassment issues and disability insurance matters.
For Employees, the services we offer include:
What are your rights when your employment is terminated in Ontario?
Ontario’s Employment Standards Act (“ESA”) outlines the minimum notice of termination or pay in lieu thereof that an employee is entitled to. The vast majority of employees terminated in Ontario are entitled to significantly more compensation from their employer under the “common law” (or judge-made law).
Under the common law, a Court will look to a range of factors in determining how much money an employee is owed for termination pay, including the age of the employee, the length of service, the employee’s role/responsibility and the availability of comparable employment.
If you received a termination package, chances are that you are entitled to significantly more money than what your former employer is offering.
At Pinto Shekib LLP, we can guide you throughout your termination process: we review your termination package, negotiate with your former employer and represent you in Court when necessary.
We review termination packages on a fixed fee basis. Contact Pinto Shekib LLP to schedule a free consultation.
Why have your employment contract reviewed by Pinto Shekib LLP?
The majority of employment contracts in Ontario are drafted by the employer and are in the employer’s favour. Employers may place restrictions in the contract such as limitations on your common law notice entitlements, anti-constructive dismissal clauses and non-competition clauses.
At Pinto Shekib LLP, we can review your contract; advise you on whether certain restrictions in the contract are enforceable; help you negotiate “behind the scenes” with your employer; and/or negotiate directly on your behalf.
We review employment contracts on a fixed-fee basis. Contact Pinto Shekib LLP to schedule a free consultation.
You might be surprised to learn that as a non-unionized employee, you generally do not have an automatic right to continued employment. Your employer can terminate you at any time as long as you are provided with adequate notice.
What, then, is a wrongful dismissal? You are wrongfully dismissed when you are terminated without cause and without sufficient notice or payment in lieu of notice. Often, the initial termination package that you are offered by your employer is inadequate. We can help you secure the compensation that you deserve, which may include:
- Common law notice: judge-made law that entitles you to significantly more notice pay than what your employer may have initially offered you under the Employment Standards Act.
- Severance pay: if you worked for your employer for at least 5 years, and your employer has an annual global payroll of at least $2.5 million, you may be entitled to severance pay in addition to termination pay.
- Damages: broadly speaking, if the manner in which your employer terminated your employment is in bad faith or unfair (such as fabrications of theft), you may be entitled to additional damages (such as aggravated damages and, in some rare cases, punitive damages).
Employers may also assert an inappropriate for cause termination and refuse to pay the employee termination pay. Examples of misconduct that can lead to for cause termination include dishonesty, theft, violent behaviour in the workplace and neglect of duties. If the employer has cause to terminate an employee, the employee is generally not entitled to termination pay or common law notice.
However, it is often very difficult for an employer to establish just cause for termination, especially when the employee retains strong counsel. If you have been terminated with or without cause, our lawyers are here to protect your interests. Contact Pinto Shekib LLP to schedule a free consultation.
When your employer makes significant changes to a fundamental term of your employment without your actual or implied consent, you may be deemed to have been constructively dismissed. In other words, in law you may be deemed to have been terminated based on your employer’s conduct, and you are likely entitled to termination pay. Examples of fundamental changes that may lead to a constructive dismissal include:
- Significant reduction in salary, benefits or other compensation;
- Demotion in position and responsibility;
- Relocation of work (such as moving the office from Toronto to Alberta); and,
- Toxic work environment, suspension without pay and significant increases in workload.
Whether a change amounts to constructive dismissal is fact specific. If you think you have been constructively dismissed, you should object to the new terms imposed by your employer. If you remain silent, a Court may deem you to have accepted the changes.
Our employment litigation lawyers can help guide you throughout your constructive dismissal claim. Contact Pinto Shekib LLP to schedule a free consultation.
Independent Contractor vs Employee
Are you a true independent contractor?
Employers frequently misclassify their employees as contractors because it saves them money, at least in the short term. A true independent contractor is not entitled to the protections afforded by the Employment Standards Act, such as minimum wage or vacation pay. Similarly, true independent contractors are not entitled to notice of termination or pay in lieu thereof. The true independent contractor’s rights are typically outlined in their written contract, which are generally minimal at best.
In our experience, many “independent contractors” in Ontario are likely employees. Despite the label imposed on these workers by their employers, Ontario Courts will look to a range of factors, such as the level of control exerted by the employer over the worker’s activities, in determining whether one is an employee or a true independent contractor.
Dependent Contractor
There is also an intermediate category, the dependent contractor, which exists between an independent contractor and employee. The relationship is characterized by economic dependency. For example, if the worker allocates 80% of his or her time working for one employer, there is a good chance that worker is a dependent contractor.
Dependent contractors, unlike true independent contractors, maybe entitled to reasonable notice at common law, or pay in lieu thereof, if their services are terminated. This could be a substantial sum of money – upwards of 24 months of pay in lieu of notice in some circumstances. If you are a contractor who has been terminated, our lawyers are here to protect your interests. Contact Pinto Shekib LLP to schedule a free consultation.
For Employers, the services we offer include:
Why should all of your employees have written employment contracts?
A well-drafted employment contract has many benefits, including the following:
- It can significantly limit the employer’s termination pay obligations to the employee, potentially saving the employer hundreds of thousands of dollars;
- It clearly outlines the employee’s role and responsibilities;
- It can support the employer in establishing “cause” to terminate an employee;
- It can allow the employer to temporarily lay off employees; and,
- It can protect the employer from constructive dismissal claims.
It is important that the employee sign an employment contract before the commencement of employment. Contracts signed after the employee has started working may be attacked by the employee and rendered unenforceable in Court for a range of reasons, such as lack of fresh consideration.
Our employment lawyers can draft your employment contracts or update your existing contracts to ensure that you are protected. Contact Pinto Shekib LLP to schedule a free consultation.
Are you terminating an employee?
Our lawyers can help you draft strategic termination packages, and we can defend wrongful dismissal litigation arising from such termination. In Ontario, assuming you are a provincially regulated employer, a terminated employee may be entitled to a range of compensation, which can include:
Termination Pay
If the employee is terminated without cause, the employer must provide the employee with notice of termination, or pay in lieu thereof, under the Employment Standards Act (“ESA”). The amount of notice will depend on how long the employee worked for the employer and ranges from 1 to 8 weeks. Additionally, under the common law (judge-made law), an employer may be required to provide terminated employees with far more notice than the ESA minimums.
Severance Pay
If the employer has a global payroll of at least $2.5 million, and the employee has worked for the employer for at least 5 years, severance pay is also required under the ESA. Severance pay is based on the number of years and months that the employee was employed with a maximum of 26 weeks of pay.
Damages
Broadly speaking, if the manner in which the employer terminated the employee is in bad faith or unfair (such as fabrications of theft), the Court may award the employee additional damages as a result of the employer’s conduct (such as aggravated damages and, in some rare cases, punitive damages).
When you retain us, the first step we take is to draft a termination package. This requires a careful analysis of a range of factors, including the employee’s age, experience, length of service and a review of the employment contract.
If your employment contract is properly drafted with an enforceable termination clause, you may only have to pay the employee the ESA minimum in termination pay and/or severance pay.
Many employers, however, do not have properly drafted termination clauses in their employment contracts. In such a case, we work with you to craft an appropriate termination package, taking into account the relevant legal principles and the state of the market. For example, if the terminated employee is in a high demand role, we may recommend offering a less generous termination package, as the employee is likely to find similar employment sooner rather than later.
Should wrongful dismissal litigation arise from such a termination, our lawyers are prepared to defend your interests. Contact Pinto Shekib LLP to schedule a free consultation.
As an employer, you must be mindful of possible constructive dismissal claims when making changes in the workplace. If an employee is constructively dismissed, in law the employee is deemed to have been terminated and entitled to termination pay.
Though each case is fact specific, the following general principles should be kept in mind:
- A “unilateral” and “substantial change” to an employee’s working condition or environment that violates the employment contract may result in a constructive dismissal claim.
- When an employee consents to the change, either implicitly (e.g. by not objecting) or explicitly (e.g. by agreeing to the change), there is likely no unilateral change/constructive dismissal.
- A substantial change must be significant in such a way that it violates the terms of the employment contract (e.g. a 50% reduction in salary is likely a substantial change).
- A constructive dismissal may also occur where an employer engages in conduct that suggests the employer no longer wishes to be bound by the terms of the employment contract. For example, if an employee is continuously harassed at work by a colleague, and the employer fails to respond, a constructive dismissal may have occurred.
As constructive dismissal cases are highly fact specific, guidance from an experienced employment lawyer is essential when responding to such claims. Contact Pinto Shekib LLP to schedule a free consultation.
Why are workplace investigations important?
An investigation is a critical step that should be taken before an employee is disciplined or dismissed for cause. With respect to certain types of allegations, such as harassment, employers are legally obligated to investigate such complaints.
Workplace investigations have many benefits for the employer. It can minimize the employer’s legal risk; strengthen the employer’s position concerning the basis for dismissal; and help the employer obtain a better understanding of the facts. The failure to conduct a proper investigation can result in significant financial consequences for the employer.
Our lawyers can perform investigations in all aspects of employment law, including sexual harassment, conflict of interest, theft and bullying allegations. Contact Pinto Shekib LLP to schedule a free consultation.
Policies and procedures help clearly outline the rules of the workplace and the mechanisms to enforce them, including the taking of disciplinary action by the employer. As an employer in Ontario, you are legally required to have certain written, regularly updated policies, which include:
- Accessibility Policy;
- Workplace Health & Safety Policy;
- Workplace Violence and Harassment Policy;
- Pay Equity Plan Policy; and,
- COVID-19 Workplace Safety Plan.
Other policies that an employer should consider implementing include:
- Absenteeism Policy;
- Accommodation Policy;
- Human Rights Policy;
- Intoxicants Policy;
- Privacy Policy; and,
- Social Media Policy.
Employers may also be legally required to carry out certain types of training with respect to these policies.
Pinto Shekib LLP can assist you in meeting your training needs and ensuring that you are in compliance with your legislatively required training obligations. Contact Pinto Shekib LLP to schedule a free consultation.