Services for Employers

Although signed employment contracts aren’t legally required in most cases, having them offers employers substantial benefits.

Every person who works and earns wages operates under an employment contract. If it’s not written, then it’s verbal and governed by common law (judge-made) rules, employment standards legislation, and implied terms. This can lead to uncertainty and unpredictable outcomes.   

Should it become necessary to discipline or dismiss an employee, a well-drafted employment contract can protect you from significant liability for termination and severance pay, and safeguard your confidential information, such as trade secrets or client lists. 

Under the Occupational Health and Safety Act (“OHSA”), you must investigate complaints of workplace harassment, including sexual harassment. Even without a “formal” complaint, the OHSA requires you, the employer, to conduct an investigation if you become aware of workplace harassment. Certain complaints could also engage employer obligations under the Ontario Human Rights Code. 

The extent of the investigation—and your response—depends on the seriousness of the complaint.  Minor disputes, such as an argument between coworkers on the warehouse floor, might be investigated and resolved internally and summarily. Complaints involving prolonged or serious bullying and harassment (sexual or otherwise) could require an external investigator.   

Beyond legal obligations, any complaint signals a workplace issue that is likely to impact morale and productivity, so it’s always advisable to investigate complaints thoroughly.

Legal fees depend on the lawyer’s experience, knowledge and skill, as well as the type of service provided. At Mouck Workplace Law, our standard rate is $425/hour plus HST, unless a different rate or fee arrangement has been agreed to.  

In some cases, we may agree on one of three flexible retainer arrangements: 

1. Flat Fee Arrangement: We agree to a flat fee for a specific task or service, regardless of how much or little time it actually takes. Commonly used for preparing employment contracts or providing opinions on legal issues.

2. Limited Scope Retainer: We assist you with a certain part of a case, without committing to representing you in the whole proceeding.

3. Contingency Fee Retainer: You make no upfront payment. Our fee is a percentage of the money we recover on your behalf.         

Litigation is time intensive and therefore usually more costly than obtaining proactive legal advice.  Consulting with us before issues escalate—for example, before you dismiss an employee—is an effective way to reduce your legal risk and manage costs.

It is important to understand the reason the employee is refusing to return to the office to ensure an employer is complying with the employee’s contract and any legislation that may apply to the request. This can include the Ontario Human Rights Code. 

You may incur costs for dismissing an employee for refusing to follow a return to work directive whose employment contract outlines remote work as an agreed term. In a recent case called Byrd v Welcome Home Children’s Residence Inc., an employee allowed to work remotely from Europe for a Canadian nonprofit successfully sued the employer for constructive dismissal when asked to return to Canada. The employee was found to be entitled to termination pay.  

Yes.

Employers have a general duty to accommodate employees who have work-related restrictions because of a disability. You must take steps to fully understand the accommodation request, and then take reasonable steps to implement it. The accommodation you provide must be “reasonable,” but it need not necessarily match the employee’s preference.  

Although accommodation requests should be assessed on a case-by-case basis, it can be helpful to develop a policy outlining your general approach. 

In unionized workplaces, all employees follow the terms of the same employment contract, called a “collective agreement,” as opposed to individual contracts. A collective agreement is between the union representing employees and the employer. The collective agreement and relationship between the employer and union is governed by applicable labour relations legislation. 

How you negotiate and administer collective agreements is crucial. Labour relations legislation requires you to negotiate collective agreements in good faith. If an employee alleges that you have not followed a collective agreement, that employee can file a “grievance” through the union, which is similar to a lawsuit. If a resolution to the grievance cannot be negotiated, the grievance will be decided by a labour arbitrator.

A wrongful dismissal claim means the employee believes that you, the employer, terminated their employment without giving them enough notice or pay in lieu of notice. These claims usually come in the form of a letter from the employee’s lawyer or a statement of claim, a document that starts a lawsuit in Ontario.

You should seek legal advice immediately to assess the potential liability of any allegations of wrongful dismissal. 

Reducing or reorganizing your workforce may help your business manage costs and ensure viability in the long term. However, employee terminations come with costs, including termination and severance pay. We can help you understand and plan for these costs prior to terminating anyone’s employment.

We can also help you understand how options such as temporary layoffs or providing working notice may minimize your costs.  

It depends on why you’re terminating the employee and whether the employee is unionized. 

If the employee has engaged in misconduct, you may be able to terminate their employment without providing any notice, severance, or pay in lieu of notice. This is often referred to as dismissing an employee for “just cause”. 

If the employee is unionized, the dismissal must be carried out in accordance with the collective agreement and only for just cause, or because of a lack of available work for them. In most cases, it is not possible to dismiss a unionized employee without just cause, and there is significant risk in doing so. 

If the employee is not unionized, they may be entitled to notice or pay in lieu of notice of termination if you dismiss them without just cause. The amount of notice you are required to provide depends on their employment contract, any applicable common law rules, and the minimum requirements of employment standards legislation.

It depends. Granting a leave of absence for medical reasons is a requirement under both employment standards and human rights legislation, as well as many collective agreements.   

If you have no doubts about the legitimacy of the request, then you should allow the employee to go on sick leave and to use any sick days under their contract.

Should their medical leave extend beyond a short term, you are entitled to ask for two things: 

1. Confirmation from a qualified medical practitioner that the leave is necessary; and

2. Anticipated duration of the medical leave.  

If you question the legitimacy of the request or suspect an abuse of the sick leave provisions of a contract, we recommend seeking advice prior to denying the leave. Denials based on inadequate information or improper assumptions may give rise to legal liability.

Yes, but only for a bona fide business reason, such as downsizing, restructuring or bankruptcy/insolvency. 

You cannot dismiss an employee because they have taken parental, sick or any other type of leave that is protected under employment standards legislation. If the protected leave is found to form any part of the decision to dismiss, no matter how small, it will give rise to liability.   

Clearly communicate any shortcomings in performance and expectations for improvement. This practice—referred to as progressive discipline, performance management or simply “writing up” the employee—serves two purposes:

1. It gives the employee an opportunity to improve;

2. It creates documentation that can support the case for termination, should that be needed down the line.