I speak with human resources professionals every day about various employment law issues. This blog deals with five of the most common issues that arise in my practice.
In many organizations, labour costs often account for more than 50% of the cost of doing business. Reducing head count is one way to reduce labour costs. I am often asked how to minimize the termination costs associated with an employee termination. There are many factors that an employment lawyer can take into account. In my experience, the more lead time you provide your employment lawyer about a potential termination the better. I have written about employee termination in earlier blogs.
Not all employment contracts are created equal. If you are using an employment contract you obtained on the internet then you likely are getting what you paid for. I strongly recommend that every new hire be required to sign a properly drafted employment contract with an enforceable termination clause. It is an extremely powerful management tool and can significantly reduce your termination costs. Given changes in statute law and the common law, I suggest that you review your employment contract every year or two. Did you know that Ontario courts have recently concluded that certain termination clauses are not enforceable and in wrongful dismissal actions employees are routinely claiming their termination clause is not enforceable? I have written about employment contracts in earlier blogs.
Accommodating Disabled Employees
Over the last 2 or 3 years, I would say this is the fastest growing area in employment law – particularly employees with mental disabilities. On January 1, 2016 the Employment Standards under the Accessibility for Ontarians with Disabilities Act took effect. Among other things, it requires certain employers to prepare individual accommodation plans for an employee who seeks accommodation. In addition, I am seeing many human rights complaints alleging discrimination on the basis of mental disability. .I have written about disabled employees in earlier blogs.
An Employer’s Obligations under the Employment Standards Act Vis a Vis the Common Law
Many small employers think the Employment Standards Act (ESA) sets out its only obligations toward employees. For example, an employer is required to provide a minimum amount of notice of termination to employees under the ESA but unless an employee has signed a contract with an enforceable termination clause then the employee is generally entitled to “reasonable” notice of termination which is almost always more than the ESA minimums. Similarly, an employer is entitled to temporarily lay off an employee under the ESA but unless the employee has agreed that an employer has the right to temporarily lay her off in her employment contract then this kind of layoff is generally an employee termination which requires notice of termination. I have written about the ESA in earlier blogs.
There are two kinds of harassment complaints. One is harassment under the Ontario Human Rights Code, such as sexual harassment. The other is workplace harassment under the Occupational Health & Safety Act. There are different obligations and legal exposure for each type of complaint. Accordingly, I suggest a different response to each kind of complaint. I do however recommend that an employer take all “harassment” complaints seriously and investigate them promptly. I have written about harassment complaints in earlier blogs.
For more than 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]
In the recent decision of Andros v Colliers Macaulay Nicolls Inc., the Ontario Court of Appeal (“OCA”) found yet another termination clause to be unenforceable. In this decision, the OCA reaffirmed and clarified various principles surrounding the enforceability of such clauses.
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