Do you need an Employment Lawyer? McMackin Law has experience practicing and handling a variety of employment issues. For an individual to navigate these matters it is exceptionally difficult as much of the advice provided by the Ministry of Labour is not an accurate reflection of all your rights. Many employees lose out on 10’s of thousands of dollars by not consulting an Employment Lawyer.
Here are the Employment Law issues we can help you with:
If you are an employee and you are not part of a union, you should be entitled to reasonable notice. Notice is the period of time in which you should continue being paid after being advised of your dismissal. You may be given working notice, payment in lieu of notice or a mix of both. Wrongful dismissal occurs when an employee is terminated / dismissed and does not receive reasonable notice.
In the vast majority of cases employees are offered significantly less notice then they are legally entitled to. Employers typically offer employees termination pay that is near the minimum of what the Employment Standards Act (“ESA”) requires them to pay.
The common law (decisions by Judges) has stepped in though and has said that the amounts provided by the ESA are inadequate. Common law typically provides employees 10’s of thousands of dollars more than the minimums provided by the ESA.
Constructive Dismissal occurs when an employer unilaterally makes a significant change to your employment that you did not agree to. Often this involves any or some of the following:
If you are constructively dismissed you should be entitled to a full severance. A lawyer should be consulted prior to leaving your job to review whether the change of employment is acceptable. Additionally, an Employment lawyer can assist you in determining whether you have a claim for constructive dismissal. If you do not act quickly you may be deemed to have acquiesced to the change in your employment. This can lead to the situation where it becomes an implied term of your Employment Agreement. For example, if you accept a layoff then your employer may be able to lay you off at will going forward.
The standard to terminate an employee for cause is exceptionally high. It is often considered the equivalent of the death penalty. In many cases an employee who was terminated for cause will still be entitled to a full severance / termination pay. As a result, many employees terminated for cause will have the same legal entitlements to employees who were dismissed without cause. This is because the Employer often fails to meet the extremely high standards required to terminate an employee for cause.
An Employee terminated for cause should always seek legal advice. Employers should also seek legal advice prior to terminating an Employee for cause.
If you lose your job you should not file a claim with the Ministry of Labour. The Ministry of Labour can only assist you in obtaining your minimum entitlements. This in most cases is 10’s of thousands of dollars less than your actual entitlements. If you file a claim with the Ministry of Labour an Employment Lawyer will not be able to act for you. There is typically a 2 week period in which a claim with the Ministry of Labour can be withdrawn.
The most important contract most people will sign in their lives is their Employment Contract. However, most people focus on only the sections that are most relevant in the immediate future for them. (Salary, Bonuses, Vacation, Perks etc.) The problem is that Employment Contracts may have clauses that limit your rights in the future to common law reasonable notice, bonuses etc. For long term employees this could cost them more than a year of pay.
Generally, as an Employee it is to your advantage to have no Employment Contract or a very short Employment Contract. Lengthy Employment Contracts are designed to protect the Employer and limit your rights going forward in most cases. Each time you get an Employment Contract you should have an Employment Lawyer review it before you sign it.
When you sign an Employment Contract it is not uncommon to have a Non-Compete and / or Non-Solicitation clause in it. Many people ignore these clauses because they figure it will not affect them in the near future. Others receive legal advice and realize there is a reasonable chance these clauses are overreaching and invalid in many circumstances.
There is a large problem in ignoring non-competes and / or non-solicitation agreements. Some employers will litigate these agreements even in situations where they know they will likely be unsuccessful. If the employer chooses to sue you it could cost 10’s of thousands of dollars to defend.
Usually it is in the best interest of the employee to limit the scope of the agreement in the first place. If this is not an option a Lawyer should be retained to try to negotiate a reasonable compromise otherwise you run the risk of a lawsuit.
At some point in their lives many people have a special need that requires accommodation. If the special need is related to a ground of discrimination prohibited under the Human Rights Code then employers have a duty to accommodate you. With that said there are limits on how far an employer must go to accommodate an employee. This is typically referred to as the point of undue hardship. The prohibited grounds of discrimination are as follows:
If your employer fails to accommodate you or discriminates against you based on a prohibited ground, you will likely be entitled to a constructive dismissal and full severance. You additionally may be entitled to Human Rights Damages. You should contact an Employment Lawyer whenever you feel your Employer is failing to accommodate you or is discriminating against you on a prohibited ground.
Absent an express or implied term in your employment contract at common law a layoff can typically be treated as a Constructive Dismissal entitling an employee to full severance. If you acquiesce to a layoff you may allow your employer to lay you off in the future at will. There are exceptions where layoffs are legal.
Read McMackin Law’s article on “layoffs” for more information!
Independent contractors are not afforded the same rights as an employee. Usually the most important of these rights is what is typically referred to as common law severance or termination pay. However, in most cases a person who believes they are an independent contractor are not actually an independent contractor. The law will look at what the actual nature of your work is. It does not matter that you file your own tax return with deductions, have your own company for invoicing etc.
Recent case law suggests that there is an employment status between employee and independent contractor that is entitled to full severance. This is known as a dependent contractor. Most independent contractors are actually legally dependent contractors or employees and will thus be entitled to a full severance. You should contact an Employment Lawyer to assist you in seeking your severance.
Typically, we will meet with new clients at our main office in Bowmanville and have them describe their issue in chronological order. We will pay close attention to the details you provide us and attempt to formulate a strategy that works for you.
One of the advantages of McMackin Law is that aside from being knowledgeable on Employment Law we have litigation experience. This allows us to go to court and enforce your legal rights where necessary.
McMackin Law is proud to serve clients in the Durham Region, Clarington and Northumberland County including residents of Pickering, Ajax, Whitby, Oshawa, Courtice, Bowmanville, Newcastle, Port Hope, Cobourg, Brighton Toronto and surrounding areas.
For more information please contact us today either by phone at (647) 451-3232 or by filling in the form below.