Employment Law Issues During Job Search

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Employment Law Issues During Job Search

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Employment Law Issues During Job Search

  1. 1. 1 Barristers & Solicitors SAMFIRU TUMARKIN LLP Toronto Head Office: 350 Bay Street Suite 1000 Toronto, Ontario M5H 2S6 Mississauga Office: 2 Robert Speck Pkwy. Suite 750 Mississauga, Ontario L4Z 1H8 T: 416.861.9065 F: 416.361.0993 EMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESS Presented by: Lior Samfiru and Peter Cicak Prepared for: Mississauga Employment Center
  2. 2. 2 Employment Law Considerations  Topics: 1. Employment contracts: what you need to know 2. Working as a consultant/independent contractor 3. Termination of employment: your rights 4. Steps in a wrongful dismissal lawsuit 5. Questions.
  3. 3. 3 Employment Contracts: What You Need to Know  Consider this:  Written contracts almost always benefit the employer  Contracts are drafted by lawyers  You sign it, you have to live with it  Will govern your employment relationship and even conduct after employment comes to an end
  4. 4. 4 Employment Contracts: What You Need to Know Important Contractual Clauses 1. Termination: The BIG One Consider this Clause: “If your employment is terminated without cause, the Company shall give you notice or pay as required by the Employment Standards Act of Ontario. This shall constitute your full termination entitlements”.
  5. 5. Employment Contracts: What you Need to Know Termination Clauses:  Employer will seek to minimize termination exposure  Employment Standards Act only prescribes minimums  Contract may have fixed notice period --- not always good.  The longer you work, the more important it becomes  Understand what you will get at termination (pay, bonus, benefits, etc.)
  6. 6. 6 Employment Contracts: What You Need to Know 2. Restrictive Covenants  Non-competition provisions: duration, location, scope  Non-Solicitation  Confidentiality obligations  Can significantly impact ability to find other employment 3. Other Clauses to Note:  Are changes to duties allowed?  Are changes to pay allowed?  Are other documents mentioned (get a copy!)  Does contract apply when position changes?
  7. 7. 7 Employment Contracts: What You Need to Know  Negotiating Terms  Negotiate before you start working.  Only fight the battles that matter  Don't ask and you shall not receive  Agree in writing to re-negotiate once specific conditions met
  8. 8. 8 Independent Contractor/ Consulting Arrangements  Employee / Consultant: What's in a name?  The employment contract places a certain label on the relationship  Generally, the question is:  Are you an employee, or are you self-employed?  No one factor is determinative of your relationship, including the label that the parties to the contract choose to place upon it  Contract here beneficial to both parties
  9. 9. 9 Independent Contractor/ Consulting Arrangements  Factors to Consider:  All relevant factors will be considered when defining the relationship:  Control over how your work is done  Ability to freely negotiate your pay and set hours for work  You own your own tools, materials; and  You take on the full profit or loss from your business  Are you economically dependent on one company, or are your activities an essential component of the business --> EMPLOYEE
  10. 10. 10 Independent Contractor/ Consulting Arrangements  What Does Not Work:  Changing the title only  Can only work for one employer? No good.  Title, but nothing else  You perform the same job as other EMPLOYEES
  11. 11. 11 Independent Contractor/ Consulting Arrangements  Why be "Independent Contractor":  Taxation  Ability to claim "reasonable business expenses", as opposed to being confined by statutory expense deductions;  Mischaracterization could result in a reassessment and might result in the imposition of fines  Payroll deductions  No statutory deductions taken from pay (EI, CPP and income tax), however  Independent contractors:  Cannot collect EI benefits when unemployed;  Would be responsible for making their own CPP contributions
  12. 12. 12 Independent Contractor/ Consulting Arrangements  Considerations:  No minimum standards protection  Independent contractors are deprived of minimum standards legislation – Not subject to minimum wage, hours of work, vacation and other protections  Limited notice of termination rights
  13. 13. 13 Termination of Employment  Manners of Termination  Termination for cause - no notice  Termination without cause - notice!
  14. 14. Termination of Employment  Termination with cause  Employer can terminate employment for cause, where employee’s conduct is inconsistent with the continuation of the employment relationship.  Can only happen when the employee is guilty of repeated and very serious misconduct.  Employer has an obligation to take other lesser forms of discipline before resorting to termination.  One incident of misconduct is almost never enough.  If employer establishes cause, no requirement to pay severance.  In reality, very difficult to establish cause, and employer may be liable for damages for bad faith.
  15. 15. 15 Termination of Employment  Termination Without Cause  Can happen at any time, for any reason  Performance is irrelevant  Seniority is irrelevant  No termination as a result of a discriminatory ground (for example, no termination without cause because employee was absent due to an illness)
  16. 16. 16 Termination of Employment  Termination Without Cause (contd.)  Employer must provide reasonable notice or pay in lieu thereof  Starting point: employment contract  No contract: probably good news for employee  Must determine what reasonable notice is for each employee
  17. 17. 17 Termination of Employment  Termination Without Cause (contd.)  Notice is based on employee's age, length of employment, nature of position  Was employee induced to leave secure employment? Notice goes up.  Employer may decide to give working notice  If no working notice, must be put in the same financial position as if given working notice.  Payment can be made as lump sum or as salary continuation.  Package must include everything: salary, bonus, commissions, benefits, stock options, vacation pay.  Important: employee has duty to mitigate
  18. 18. 18 Termination of Employment  Termination Without Cause (contd.)  Employer imposed time limits: take your time!  Always take package home and consider speaking to a lawyer  Employer will want a release  Consider if employer must pay lump sum (if payroll > $2.5 million)
  19. 19. 19 Termination of Employment  Constructive Dismissal  Significant, unilateral, change to important contractual term  Gives rise to termination without cause  Employment contract is important  Resign...or else...
  20. 20. WRONGFUL DISMISSAL  Steps in Wrongful Dismissal Claim: 1. Demand Letter: resolves vast majority of disputes 2. Statement of Claim served by employee 3. Employer has 30 days to serve Statement of Defence 4. Mandatory Mediation (Toronto only): resolves close to 95% of employment lawsuits
  21. 21. WRONGFUL DISMISSAL Continued: 5. Examinations for Discovery (only for lawsuits exceeding $50,000) 6. Pre-Trial Conference 7. Trial Timelines: To mediation: 3 months To trial: 8 to 12 months
  22. 22. 22 For further information, please contact: Lior Samfiru Tel: (416) 861-9065 Fax: (416) 361-0993 www.stlawyers.ca Offices in Toronto and Mississauga Barristers & Solicitors SAMFIRU TUMARKIN LLP Toronto Head Office: 350 Bay Street Suite 1000 Toronto, Ontario M5H 2S6 Mississauga Office: 2 Robert Speck Pkwy. Suite 750 Mississauga, Ontario L4Z 1H8 Presented by: Lior Samfiru and Peter Cicak Prepared for: Mississauga Employment Center Trusted. Dedicated. Experienced.

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