Willson Lewis LLP

Willson Lewis LLP

EMPLOYMENT LAW:

HIRING, FIRING, AND

EVERYTHING IN

BETWEEN

SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!

Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property

disputes, and collections

67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com

Willson Lewis LLPBiographies

CATHERINE E. WILLSON, B.A., LL.B., PARTNERA longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding partner of Willson Lewis LLP, and has established a successful practice in employment law, civil litigation, equine, collections, construction, and family law. She was an executive member of the Canadian Bar Association (Ontario) – Civil Litigation Section. She is also a member of the Advocates Society, the Association of Trial Lawyers of America, and the Toronto Construction Association. Catherine is both the Chairman of the Risk Management Committee and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is the legal expert for the Canadian Federation of Independent Business (Member Services) and is a regular speaker at legal and business conferences, an instructor at the University of Guelph, and writes on legal issues for several national publications.

CRAIG A. LEWIS, B.A., LL.B., PARTNERHas been practicing employment law since being called to the Bar. He received his Bachelor of Laws degree from Queen’s University and was admitted to the Law Society of Upper Canada in 1993. A member of the Ontario Bar Association, Advocates Society, Canadian Association of Black Lawyers and the Metropolitan Toronto Lawyers Association. Craig has been a speaker at Ontario Bar Association seminars concerning advocacy matters and has litigated at all levels of Court in the Province. In his employment practice, Craig has prepared employment contracts and independent contractor agreements. He has provided advice on hiring, terminations packages and wrongful dismissal claims. He has assisted clients in drafting employment policy manuals. Craig has extensive experience in responding to human rights complaints.

Willson Lewis LLP Biographies

MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATEMarlene was called to the Ontario Bar in 1993, having received her LL.B. from the University of Western Ontario and completing her articles at one of the oldest law firms in Canada. Marlene’s practice includes civil, matrimonial and construction lien law. Marlene has trial experience at all levels of Court in the Province of Ontario, and she is a member of the Ontario Bar Association and the Women’s Law Association of Ontario. Marlene is a frequent contributing writer of legal information articles for the National Credit News.

STEFANIE NAVASCUES, B.A., LL.B. - ASSOCIATEStefanie Navascues was called to the Ontario Bar in 2003. After completing her articles with the Ministry of the Attorney General, Stefanie entered private practice as an associate in a boutique civil litigation firm. She has appeared before the Ontario Superior Court of Justice, as well as the Ontario Court of Justice and various administrative tribunals. Stefanie continues her practice in all areas of civil litigation. Stefanie is a member of the Ontario Bar Association, the York Region Law Association, and is also a member of the Ontario Trial Lawyers' Association. Stefanie is fluent in Spanish, and has a good working knowledge of French and Italian.

AIMEE COLYER, B.A., LL.B. – ASSOCIATEAimee was called to the Ontario Bar in 2007. After completing her articles with Willson Lewis LLP, Aimee practised as an associate with two large Bay Street firms. In 2009, she returned to the firm to practice family law and civil litigation. Aimee is a member of the Ontario Bar Association.

dispute resolution court actions, applications,

injunctive relief commercial disputes personal disputes mediation and arbitration

CIVIL LITIGATION

EMPLOYMENT LAW

employment contracts and consulting agreements

wrongful dismissal conflicts in the workplace termination packages

EExperienced counsel practising in:xperienced counsel practising in:

construction projects (general contract/project management/design build)

preparation of construction contracts tender advice and resolution of disputes negotiation and litigation of construction

disputes including lien actions and breach of trust issues

CONSTRUCTION LAW

FAMILY LAW

divorce, separation, custody, support, property issues

separation agreements cohabitation and marriage contracts settlement negotiation and mediation

EExperienced counsel practising in:xperienced counsel practising in:

Dispute resolution, litigation purchase and sale agreements,

boarding agreements and leasing agreements

co-ownership agreements and syndications

EQUINE LAW

EExperienced counsel practising in:xperienced counsel practising in:

The

ActIncome Tax

The

Act

Canada Pension Plan

The

Act

EmploymentInsurance

The

Act

Employment

Standards

The

Act

WorkplaceSafety &Insurance

The

Act

Occupational

Health &

Safety

EMPLOYMENT RELATED EMPLOYMENT RELATED STATUTESSTATUTES

EMPLOYMENT RELATED EMPLOYMENT RELATED STATUTESSTATUTES

EMPLOYER LIABILITY

TheCanada Labour Code

HIRING – EMPLOYMENT CONTRACTSHIRING – EMPLOYMENT CONTRACTSHIRING – EMPLOYMENT CONTRACTSHIRING – EMPLOYMENT CONTRACTS

APPLICATIONS & RECRUITING

DO NOT: Ask about age, date of birth,

hair oreye colour, weight or height

Ask about religious affiliation Ask about Canadian

citizenship Ask for ‘maiden name’ or

greetingidentification, i.e. Mr. or Miss.

JOB OFFERSJOB OFFERSJOB OFFERSJOB OFFERS

Avoid making a verbal job offer with different written terms later

Do advise that the offer is forthcoming and send itin writing

Do give time for the employee to review

Do encourage the employee to get legal advice

Do get signature before work starts

EMPLOYMENT CONTRACTSEMPLOYMENT CONTRACTSEMPLOYMENT CONTRACTSEMPLOYMENT CONTRACTS

CONSIDER:

Indefinite term or specificproject or task

Compensation including bonuses

Describing duties and specifyingability to change

Describing the probationary nature of theposition and ability to dismiss without notice

Providing for Termination

Inserting a non-solicitation/non-competition clause

Inserting a confidential information clause

Ensure that adequate consideration isprovided for the contractual relationship

TESTS – INDEPENDENT TESTS – INDEPENDENT CONTRACTORCONTRACTOR

TESTS – INDEPENDENT TESTS – INDEPENDENT CONTRACTORCONTRACTOR

Control Test

the degree of direction and control over a worker

Ownership of Tools

Chance of Profit

Risk of Loss

Organization Test

is an individual’s work an integral part of business operations of the company?

COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:

Require a written contract for services executed by the contractor.

Include a termination provision in the contract with notice of no less than an employee’s entitlement under the Employment Standards Act – do not make reference to the Act in the contract.

Make the contract for a definite term or task.

The contract should indicate that the person is an independent contractor and not an employee.

The contract should state that the contractor is responsible for paying all Government remittances to the appropriate agencies. It is a good idea to obtain an indemnity from the contractor to pay remittances required by Government agencies in the future.

COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:

Clearly define the scope of authority provided to the contractor – for example, the contractor may not enter into contracts on behalf of the company.

The contract should indicate that the contractor is free to provide services to others.

The contract should contain a confidential information clause.

Ensure that adequate consideration is provided for the contractual relationship.

Require invoices for services from the contractor.

COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:COMPANY DO’S:

Clearly sever a prior employment relationship before entering into a contractual relationship.

Consider the application of relevant taxes – GST, HST, etc.

Require the contractor to obtain a G.S.T. number and to charge or remit G.S.T. to the Government.

Where transportation services are provided, specify that the contractor is responsible for the vehicle and all of its expenses.

Permit the contractor to hire employees or subcontractors.

COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:

Include a non-solicitation/anti-competition clause in the contract

Refer to the contractor as a commissioned sales person or speak of commission sales or salaries in the contract.

Provide T4 slips.

Exert control over the contractor’s hours of work, vacation time, or subject the contractor to company supervision or performance evaluations.

Allow the contractor to use company stationary or business cards.

COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:COMPANY DON’TS:

Supply a permanent workstation or office space or encourage the contractor to use company equipment or company staff as assistants.

Restrict the number of clients that the contractor can serve.

Prevent the contractor from soliciting his/her own clients or set quotas for the contractor.

Require the contractor to comply with company policies and discipline procedures.

Provide medical or disability benefits or vacation pay.

DUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATE

DO: Listen to the Employee

Work with the Employee

Make business needs known

Ask for medical information from Employee’s physicians

Tolerate absenteeism that is disability related

Accept a modified work schedule that is reasonable

Be sensitive to Employee concerns

Keep medical information confidential – Need to Know Only

DUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATEDUTY TO ACCOMODATE

DON’T: Harass the employee for medical information

Prefer employer’s opinion over medical opinion

Send the employee to a company doctor, unless exceptional circumstances

Treat the employee as if she/he is malingering

Discipline for disability related absence

Intimidate or bully the employee

Refuse to deal with the employee’s lawyer

EMPLOYEE MANAGEMENT DO’SEMPLOYEE MANAGEMENT DO’SEMPLOYEE MANAGEMENT DO’SEMPLOYEE MANAGEMENT DO’S

DO: Have regular performance reviews

Create a paper trail

Show the level of performance required

Communicate your expectations

Give clear, prompt and consistent instruction

Give written instruction

Give warning memo

Provide training

DISMISSALDISMISSALDISMISSALDISMISSAL

What is Constructive Dismissal? Demotion

Unilateral reduction in salary

A hostile work environment (problem managers)

Geographic transfer

Change in commission structure or method of remuneration

DISMISSALDISMISSALDISMISSALDISMISSAL

Just Cause v. Without CauseJust Cause:

No notice or pay in lieu required

Requires serious misconduct (i.e. theft) by employee, or gross incompetence or insubordination

Warnings must be issued

A reasonable opportunity to explain, or improve, must be given

Without Cause:

Notice or pay in lieu required pursuant to Employment Standards Act, or Canada Labour Code; and common law

The Employment Standards Act, 2000

No termination without notice

54. No employer shall terminate the employment of an employee who hasbeen continuously employed for threemonths or more unless the employer,

(a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or

(b) has complied with section 61. 2000, c. 41, s. 54.

The Employment Standards Act, 2000

Employer notice period

57.   The notice of termination under section 54 shall be given,

(a) at least one week before the termination, if the employee’s period of employment is less than one year;

(b) at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years;

(c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years;

(d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;

The Employment Standards Act, 2000

Employer notice period (Continued)

(e) at least five weeks before the termination, if theemployee’s period of employment is five yearsor more and fewer than six years;

(f) at least six weeks before the termination, if the employee’s period of employment issix years or more and fewer than seven years;

(g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or

(h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.

The Employment Standards Act, 2000

Pay instead of notice

61.  (1)  An employer may terminate the employmentof an employee without notice or with less noticethan is required under section 57 or 58 if the employer,

(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and

(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.

The Employment Standards Act, 2000

Entitlement to severance pay

64.  (1)  An employer who severs an employmentrelationship with an employee shall payseverance pay to the employee if the employeewas employed by the employer for five years or more and,

(a) the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or

(b) the employer has a payroll of $2.5 million or more.

The Employment Standards Act, 2000

Calculating severance pay65.  (1)  Severance pay under this section

shall be calculated by multiplying the employee’s regular wages for a regular work week by the sum of,

(a) the number of years of employment the employee has completed; and

(b) the number of months of employment not included in clause (a) that the employee has completed, divided by 12.

Canada Labour CodeDIVISION X

INDIVIDUAL TERMINATIONS OF EMPLOYMENTNotice or wages in lieu of notice

230. (1) Except where subsection (2) applies, an employer who terminates the employment of an employee who has completed three consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, give the employee either

(a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or

(b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice.

Canada Labour Code

DIVISION XISEVERANCE PAY

Minimum rate235. (1) An employer who terminates the employment of an

employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of

(a) two days wages at the employee’s regular rate of wages for his regular hours of work in respect of each completed year of employment that is within the term of the employee’s continuous employment by the employer, and

(b) five days wages at the employee’s regular rate of wages for his regular hours of work.

REASONABLE NOTICEREASONABLE NOTICEREASONABLE NOTICEREASONABLE NOTICE

Employment Standards Act is a minimum only

Ball park/range of notice

Factors – Age, Seniority, Length of Employment, other issues

Month per year maxim – Right or Wrong

Bad faith damages

Benefits & Pension

Disability Plan Issues

HOW TO TERMINATEHOW TO TERMINATEHOW TO TERMINATEHOW TO TERMINATE

Written Notice

Private Meeting, Little Said

Respectful

Make Notes

Securing Confidential Information and Property

Record of Employment in 5 days

Termination Pay due in 7 days or next payroll

Job Placement Assistance

MANDATORY MANDATORY RETIREMENTRETIREMENTMANDATORY MANDATORY RETIREMENTRETIREMENT

As of December 12, 2006,there is no mandatory retirement at age 65

in the Province of Ontario

WHAT DOES THIS MEAN?

Willson Lewis LLP

EMPLOYMENT LAW:

HIRING, FIRING, AND

EVERYTHING IN

BETWEEN

SATISFIED CLIENTS ARE OUR GREATEST STRENGTH!

Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property

disputes, and collections

67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com