The Role of an Employment Lawyer in Your Company’s Growth and Success

When people start a business, they often retain lawyers to handle some of the complex work that goes into establishing and growing a business. This includes retaining lawyers to draft partnership agreements and articles of incorporation, negotiate contracts for the sale of goods, and even review the business’s tax documents.

One area of law that businesses don’t always turn their minds to when starting their business is employment law. Failing to do so could impose huge legal liabilities on employers, whether it be from a workplace safety audit, human rights complaint, or a wrongful dismissal lawsuit. This is why retaining an employment lawyer can help support the growth and success of your company.

Workplace Safety and Compliance

All employers have the duty to provide a safe workplace and the duty to develop and implement policies and programs to prevent and eliminate workplace violence and workplace harassment. For countless employees and employers, workplace safety is one of their paramount concerns. Nobody wants to see their friends or colleagues injured on the job or be injured themselves.

When employees are injured on the job, it creates an array of risks for both employers. They have to report injuries and accidents, ensure that the incident can’t, and won’t, be repeated, and prepare for the employee’s return to work, without intentionally or inadvertently discriminating against the employee as a result of their injury.

Employers must also comply with provisions of the Occupational Health and Safety Act (“OHSA”) that concern the development and review of workplace safety policies, the creation of a joint health and safety committee, and publicly displaying a copy of OHSA materials produced by the provincial government, and the company’s health and safety policies. Being uninformed and ignorant of your responsibilities as an employer is not a defence for non-compliance with OHSA.

Some, but not all, employers are also required to register for coverage under the Workplace Safety and Insurance Board (“WSIB”). Employers who are required to register for coverage must do so within 10 days after hiring their first employee, even if that employee does not work in a dangerous part of the business.

Workplace safety and compliance is a lengthy and complex process for all employers, regardless of size and industry. It can be incredibly difficult and daunting to attempt to navigate the OHSA rules and requirements by yourself. If you have questions about your occupational health and safety obligations and responsibilities, you should contact us.

Unlawful Discrimination & Human Rights Violations

Workplace discrimination and human rights violations are some of the most common types of cases that employment lawyers handle. Workplace discrimination can include a wide range of discriminatory conduct, including racist or sexist harassment from supervisors or other employees, discrimination based on a physical or mental disability, age, religion, and more.

The workplace is supposed to be free from discrimination for all employees in Ontario. That is unfortunately not always the case. Unfortunately, there is as much variation in the types of discrimination that employees face as there is variation among individuals.

As with workplace safety compliance, employment lawyers also regularly work with employers to ensure that their workplaces remain discrimination free. This includes advising on implementing policies and procedures to protect employees and discipline those guilty of discriminatory conduct.

Employers have the duty to prevent discrimination in the workplace and to accommodate employees with disabilities and other human rights needs. If you are looking to review your policies or ensure you are protecting your employees from discrimination, you should contact our firm immediately.

Reviewing Employment Contracts

Employment contracts are the governing agreements in employment relationships. They set out the core elements of a person’s employment, including their wages, benefits, location and hours of work, and even their job duties. They also set out additional conditions that allow employers to take certain actions, including introducing a probationary period, temporarily laying off an employee, and binding the employee with restrictive covenants.

Many new and small businesses provide workers with contracts and assume that this makes them “independent contractors”, hoping that this will protect the business from the liabilities and requirements of having employees, such as having to deduct payroll taxes or pay termination pay to dismissed workers. This is not the case.

Courts and government agencies, including the Canada Revenue Agency, look past the written words of contracts to determine the classification of workers. Many workers classified as “independent contractors” are actually employees and their employers will be on the hook for liabilities such as termination pay.

Retaining an employment lawyer can help you sort out whether your workers are employees or not, and more importantly, a skilled employment lawyer can draft a termination clause that will limit the employee’s entitlements on termination to the minimums under the Employment Standards Act, 2000 (the “ESA”). If you are recruiting a new employee or about to terminate one, you may benefit by having a lawyer review your contracts to see if they are enforceable.

If you have just been terminated ‘without cause’ or you are offered a severance package that limits you to your ESA entitlements, you may benefit by having a lawyer review your contract to see if you can get more compensation than your contract suggests.

Wrongful Dismissal

The biggest reason why businesses should retain an employment lawyer is to represent them in cases of wrongful dismissal. When an employer terminates an employee ‘without cause’, they are required to give the employee notice of termination or pay them wages equivalent to what the notice period would be.

Employers use termination clauses contained within employment contracts to limit the amount of notice owed to an employee upon termination to just the minimum notice under the ESA, which is measured in weeks. Employees try to get out of these clauses because they want to receive notice of termination under the common law, which is typically measured in months.

An unenforceable termination clause in an employment contract means that employees who are terminated without cause are entitled to common law notice of termination, which is worth more than the minimum amounts under the ESA.

Many employers wrongly assume that they can write a simple termination clause that uses stereotypical language, and that will be sufficient to limit an employee’s entitlements to the minimums under the Employment Standards Act, 2000 (the “ESA”). Worse, many employers use termination clauses written in other provinces or countries and assume they will be sufficient for Ontario. Clauses drafted in this manner are unenforceable and allow an employee who has been fired to sue for common law wrongful dismissal damages.

Having an experienced employment lawyer draft employment contracts for your company can save your business significant time and expense if your business is sued for wrongful dismissal.

Employment lawyers spend the majority of their time working on wrongful dismissal cases including terminations with and without cause, and constructive dismissal claims. Having an experienced employment lawyer familiar with the intricacies of wrongful dismissal cases can make (or break) your case. Wrongful dismissal cases are not always straightforward, and include countless steps and issues, including the complexities of determining reasonable severance, whether there was cause to dismiss, human rights violations, and attempting to enforce a termination clause.

At Levitt LLP, we specialize in guiding employers through the complexities of all areas of employment law. Our experienced team is committed to helping you understand any questions that you may have about employment law. Contact us for a consultation and take the first step in building your new business.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment contracts better and seek legal advice to their questions.