I have been providing employment law advice to employers for over 25 years. I provide preventive advice and I put out legal fires. When I provide the former services I am a solicitor and when I provide the latter I am a barrister.
For various reasons, small employers are generally reluctant to pay a solicitor for preventative advice. In my experience, failure to do so can result in the employer paying a lot more money to a barrister in the future to put out legal fires.
This blog discusses three kinds of services that you can purchase from an employment lawyer that can reduce or prevent legal claims.
An employment contract sets out the terms and conditions of an employee’s employment. After learning the benefits of this contract, any rational employer should pay an employment lawyer to prepare a properly written employment contract. For example, the termination clause alone could save an employer over $ 40 000 in connection with the termination of a 12 year employee who earns about $ 50 000 per year.
No Discrimination Policy
A no discrimination policy prohibits discrimination in the workplace and establishes a complaint process for employees who believe they have been subjected to discrimination. Employees are knowledgeable about their right to not be discriminated against because of pregnancy, their age, their race, their gender and 12 other personal characteristics. It costs an employee nothing to file an application with the Ontario Human Rights Tribunal (OHRT). Defending this kind of application can be very costly and if you win the case the employee will not be ordered to pay your legal costs. Damage awards can be significant. An adjudicator recently ordered an employer to reinstate a disabled employee with 9 years back pay.
If you have an internal complaint process there is a good chance the employee will use it and you can avoid a complaint to the (OHRT). It also makes business sense to have this kind of policy because it is an early warning signal that discrimination is taking place. Without it, undetected discrimination can result in absenteeism, lost productivity and resignations.
Disability Management Program
A disability management program establishes a process for managing disabled employees. Disabled employees have special rights. Among other things, an employer is generally required to accommodate a disabled employee unless this would result in undue hardship.
When confronted with a disabled employee who is requesting accommodation, some small employers simply lay off the employee and tell the employee to collect employment insurance disability benefits, or refuse to transfer the employee to a vacant position within the organization. In some cases, this is a big mistake that can result in expensive litigation. For example, failure to re-employ an employee who has a workplace disability can cost an employer two years of the employee’s salary under Ontario’s workers compensation legislation.
We suggest that an employer establish a disability management program. This program can, among other things, give you the right to send the employee to a doctor of your choosing. It can also establish a procedure for you to follow in each case so you have satisfied the procedural duty to accommodate.
The Current Legal Landscape
New employment laws and higher damage awards should make small employers take pause and consider whether paying for these three services is an investment worth making. The alternative, which is a legal fire storm, can cripple a small business.
For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on employment law issues. If you have any questions concerning your rights and obligations in relation to your employees, 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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