Rudner Law's Employment Law Newsletter

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How do I know if I need an employment lawyer?

If you find yourself in a situation that could significantly affect your employment relationship, you should consider seeking advice from an employment lawyer. If you are unsure, it is often worth checking with a legal professional. Often, they can provide you with relatively easy solutions that can help resolve the situation before things escalate and the relationship becomes irreparable. But if you are not proactive, it can cost you a lot more in the long run. The truth is, if you think you might need an employment lawyer, you probably do!

Why should I choose Rudner Law?

At Rudner law, we recognize that the employment relationship is an interpersonal one, not unlike a marriage. Hiring decisions are always challenging and terminations are always stressful, regardless of whether you’re an employee or an employer. Since we advise employers and employees, we can see both sides of a story and are committed to being impartial in all situations. However, when we’re on your side, we promise to give you practical, cost-effective advice and then fight tooth and nail to get you satisfactory results.

Do you offer free consultations?

We do not offer free consultations. This is because we structure our consultations for maximum value and effectiveness. They are designed to be comprehensive enough that, in many cases, you can walk away with enough information to resolve the issue without further involvement on our part, thereby saving you any additional costs. Legal advice is what we sell, so it is hard to justify giving it away for free.

Our consultation is a fixed-fee process that involves reviewing the background and up to one hour of meeting time. The fee will depend on the level of experience of the lawyer you meet with, and will be fully disclosed and mutually agreed upon prior to meeting.

What can I expect from my first consultation?

During the meeting, we will ensure that we understand the circumstances by reviewing your documentation and gathering relevant facts from you, provide you with our assessment of your case, explain your legal rights, outline your options, and work with you to develop the most appropriate strategy. Our goal is to ensure that, by the end of the consultation, you will have an understanding of the legal principles involved, your rights and obligations, and the options and strategies available to you.

How can I prepare for my consultation?

To ensure that you get the most out of your first consultation:

  • Bring or send us a copy of your government-issued ID. The Law Society of Ontario requires that we confirm your identity and we will keep a copy in your client file at the firm.
  • Before your meeting, be sure to send us any documents you think might be relevant to your case. This will allow the lawyer to get a sense of the issue beforehand, so that they can spend the time with you dealing only with the most important matters. Some examples of helpful documents are:
    • Employment contracts
    • Correspondence relating to a job offer
    • Promotion letters
    • Disciplinary warnings
    • Termination letters
    • A copy of any offer or release from an employer
  • Put together a short summary of the events that led you to seek legal help. Try to remember specific details that you would like to address with a lawyer during your consultation.
  • Create a timeline, especially in instances where you have time-related issues, such as unpaid overtime or bonuses.
  • Come with an open mind. We know that many employment matters can be emotional and difficult to be objective about. We will provide our professional opinion, but it might not always be what you were expecting. We promise to do our best to get you a result that you are happy with but will always be honest with you about your position.

Do you offer a contingency fee?

We sometimes consider a contingency arrangement in appropriate circumstances. After your initial consultation, we assess your individual circumstances and determine whether a contingency arrangement would be practical for you.

Do you have any other types of fee arrangements?

When possible, we bill on a fixed-fee basis, which means that your fee will not be dictated by the time we spend working for you, but by the legal services you receive from us. This provides you with certainty about your legal costs and allows you to budget your expenses better.

We also offer employers a monthly retainer option. This is best for clients who:

  • Use our services more frequently,
  • Want to develop strong relationships with our lawyers,
  • Want to reduce risk, exposure to loss and unnecessary legal fees, and
  • Want to budget legal expenses on a monthly basis

If our clients want to bill based on time, we make sure to maintain regular contact with them so as to provide a cost-benefit analysis at every stage. This can be beneficial in more complex cases, which might vary in the workload required.

We know that legal fees can be expensive, so we always consult our clients before making any large decisions. We never proceed with billing without mutual agreement on all sides and will always let you know if anything changes.

I am a unionized employee and my union is not helping me. What can I do?

Your union is supposed to be your first line of defense in the event of any employment issues. The first thing you should do is find your collective bargaining agreement with your union, which outlines the conditions of your employment, such as hours, wages and overtime. It should also outline what steps you can take if your employer breaches the agreement. Your union is also bound to a duty of fair representation, which means they cannot make arbitrary, discriminatory or bad faith decisions about representing you. They are obligated to listen to your complaint and discuss it with you, consider what you want and make a fair and honest decision about what action to take.

However, your union does not have to agree with you. They don’t have to pursue each case or even do a particularly good job at representing you. Most of the time, you cannot simply hire your own lawyer and take your employer to court. However, in cases such as human rights violations, you should be able to get private representation and file a human rights application.

Even if you cannot hire private representation, independent legal counsel can help you to navigate your relationship with your union so as to encourage better representation for you. It is always best to be proactive and stay aware of your rights and obligations. Doing so allows you to better advocate for yourself and ensure a fair and just result.

What can I do if I am harassed at work?

Harassment is unacceptable in the workplace and courts have made it clear that it will not be tolerated. Whether you are an employee, a manager or a CEO – if you are being harassed, you need to do something about it. As a result of increased public attention to the issue, governments across Canada have put new laws in place which require policies that mandate investigation of harassment allegations.

Proper investigations must be conducted in order to assess the veracity of any complaint or suspicion, so that appropriate action can be taken. While false allegations are rare, we have seen cases of strategic false allegations and bullying being confused with managing. In order to preserve the integrity of harassment claims, thorough investigations must be conducted to separate the truth from falsehoods.

If you are a victim of harassment, there are always solutions. We can advise you of your rights and how to defend them. We work with victims to determine the best way to protect their legal rights. We know how hard it can be to speak up, but the situation will not get better on its own. That’s where we come in.

You can read more about harassment and bullying here.

What is a constructive dismissal?

Simply put, a constructive dismissal occurs when one party to the employment agreement (usually the employer) unilaterally makes a substantial change to a fundamental term of the employment agreement. What constitutes a substantial and fundamental change will vary from case to case but the change needs to be large enough to alter the core of your employment agreement. For example, an employer cannot slash an employee’s compensation package, or move the office across the province without consulting them.

Constructive dismissals are more complicated because an employee still has their job and an employer might not be aware of any wrongdoing. This can make the outcome of such cases especially uncertain, making the advice of a legal expert crucial for success.

If you are an employee, click here to learn more about constructive dismissal.

What is “just cause”? Can my employer fire me for just cause?

Your employer might have alleged “just cause” when they fired you. This just means that they believe they had a legitimate reason to let you go. However, courts recognize that summary dismissal is the most harsh punishment an employer can inflict, and regularly find that dismissal for cause is too extreme. The onus is on the employer to prove just cause, and the threshold is high. Courts consider all relevant factors in such cases, not just the incident or misconduct in question.

Stuart has spent years studying the law regarding dismissal for cause, and has literally written the book. He knows that an employer saying they had just cause does not make it true. We have the knowledge and experience to properly advise employees that have been dismissed for cause, assess their potential claim, and work with them to pursue their rights.

You can read more here.

Can I compete with my former employer and take their clients?

The answer, as it often is in the legal world, is it depends.

All employees have a duty of confidentiality, and higher level employees may have fiduciary duties which will further limit their ability to compete. Confidentiality will prevent any employee from using confidential information for the benefit of themselves or third parties. For example, you cannot use your knowledge of your former employer to deliberately undercut them, or your knowledge of their contracts to strategically target their former customers.

Additional post-employment restrictions can be imposed by employers, usually in the form of non-competition covenants or non-solicitation covenants. However, just because it’s in writing, doesn’t make it enforceable – even if you signed it. Courts can strike down any restrictive covenant it deems unreasonable.

Click here to read more.

How much notice or “severance” am I entitled to?

It is a common misconception that the rule of thumb for appropriate notice is “one month per year of service”. Courts have repeatedly asserted that reasonable notice periods depend on a number of factors, of which length of service is but one. You are also not limited to what the employment standards legislation says, unless you signed a contract which says so. And even if you did, that contract, or the termination clause, may not be enforceable. And it sometimes surprises people to learn that generally speaking, you are entitled to have a package comprising all forms of compensation, and not just base salary. People tend to focus on how many months they got, not recognizing that they may not be receiving all of the compensation they should during those months.

The only way to know what appropriate notice is in your case is to consult an Employer Lawyer. We explain the law and consider all factors relevant to your case before reviewing your entitlements under the legislation, common law and contract. Do not make the mistake of assuming your package is fair in a time when you are at your most vulnerable. Educate yourself and consult an expert.

Can I be laid off temporarily?

A common misconception is that employers automatically have the right to lay their staff off. The truth is that your employer cannot lay you off temporarily unless they are explicitly given the right to in your Employment Contract or Collective Agreement.

Many layoffs are not permitted by contract and are therefore constructive dismissals. This can give rise to claims up to two years after the layoff.

A temporary layoff is, legally, a termination, and triggers all of the rights and obligations that an individual who had been dismissed would be entitled to. Reviewing your contract with an expert is therefore the best way to know what your entitlements are in your circumstances.

What happens if I have to go to trial?

While the vast majority of disputes are settled before getting to trial, we always ensure that our clients are ready to get if a trial or hearing is necessary. We do our best to avoid disputes but are well equipped to handle litigation if the situation calls for it. In a legal context, the best way to achieve a settlement is to prepare for trial and so we will be working towards putting you in the strongest possible negotiating position.

Since we act for employers and employees, we are able to anticipate what the other side will argue and respond. Stuart also acts as a mediator, giving him the ability to assess how a neutral third party, such as a judge, mediator or arbitrator, will view the situation. Stuart has also argued before the Supreme Court of Canada in Keayes v Honda in 2008, where the judge adopted most of his suggestions.

We are honest and zealous advocates at trial, but will also be honest with you about the strengths and weaknesses of your case. We will work with you to develop the best strategy in your case and will fight to get you the best possible outcome for you.