Presentation on theme: "EMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESS"— Presentation transcript:
1 EMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESS SAMFIRU TUMARKIN LLPToronto Head Office:350 Bay StreetSuite 1000Toronto, OntarioM5H 2S6Mississauga Office:2 Robert Speck Pkwy.Suite 750Mississauga, OntarioL4Z 1H8Barristers & SolicitorsEMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESSPresented by: Lior Samfiru and Peter CicakPrepared for: Mississauga Employment CenterT:F:
2 Employment Law Considerations Topics:Employment contracts: what you need to knowWorking as a consultant/independent contractorTermination of employment: your rightsSteps in a wrongful dismissal lawsuitQuestions.
3 Employment Contracts: What You Need to Know Consider this:Written contracts almost always benefit the employerContracts are drafted by lawyersYou sign it, you have to live with itWill govern your employment relationship and even conduct after employment comes to an end
4 Employment Contracts: What You Need to Know Important Contractual ClausesTermination: The BIG OneConsider this Clause:“If your employment is terminated without cause, the Company shall give you notice or pay as required by the Employment Standards Act of Ontario. This shall constitute your full termination entitlements”.
5 Employment Contracts: What you Need to Know Termination Clauses:Employer will seek to minimize termination exposureEmployment Standards Act only prescribes minimumsContract may have fixed notice period --- not always good.The longer you work, the more important it becomesUnderstand what you will get at termination (pay, bonus, benefits, etc.)
6 Employment Contracts: What You Need to Know 2. Restrictive CovenantsNon-competition provisions: duration, location, scopeNon-SolicitationConfidentiality obligationsCan significantly impact ability to find other employment3. Other Clauses to Note:Are changes to duties allowed?Are changes to pay allowed?Are other documents mentioned (get a copy!)Does contract apply when position changes?
7 Employment Contracts: What You Need to Know Negotiating TermsNegotiate before you start working.Only fight the battles that matterDon't ask and you shall not receiveAgree in writing to re-negotiate once specific conditions met
8 Independent Contractor/ Consulting Arrangements Employee / Consultant: What's in a name?The employment contract places a certain label on the relationshipGenerally, the question is:Are you an employee, or are you self-employed?No one factor is determinative of your relationship, including the label that the parties to the contract choose to place upon itContract here beneficial to both parties
9 Independent Contractor/ Consulting Arrangements Factors to Consider:All relevant factors will be considered when defining the relationship:Control over how your work is doneAbility to freely negotiate your pay and set hours for workYou own your own tools, materials; andYou take on the full profit or loss from your businessAre you economically dependent on one company, or are your activities an essential component of the business --> EMPLOYEE
10 Independent Contractor/ Consulting Arrangements What Does Not Work:Changing the title onlyCan only work for one employer? No good.Title, but nothing elseYou perform the same job as other EMPLOYEES
11 Independent Contractor/ Consulting Arrangements Why be "Independent Contractor":TaxationAbility to claim "reasonable business expenses", as opposed to being confined by statutory expense deductions;Mischaracterization could result in a reassessment and might result in the imposition of finesPayroll deductionsNo statutory deductions taken from pay (EI, CPP and income tax), howeverIndependent contractors:Cannot collect EI benefits when unemployed;Would be responsible for making their own CPP contributions
12 Independent Contractor/ Consulting Arrangements Considerations:No minimum standards protectionIndependent contractors are deprived of minimum standards legislationNot subject to minimum wage, hours of work, vacation and other protectionsLimited notice of termination rights
13 Termination of Employment Manners of TerminationTermination for cause - no noticeTermination without cause - notice!
14 Termination of Employment Termination with causeEmployer can terminate employment for cause, where employee’s conduct is inconsistent with the continuation of the employment relationship.Can only happen when the employee is guilty of repeated and very serious misconduct.Employer has an obligation to take other lesser forms of discipline before resorting to termination.One incident of misconduct is almost never enough.If employer establishes cause, no requirement to pay severance.In reality, very difficult to establish cause, and employer may be liable for damages for bad faith.
15 Termination of Employment Termination Without CauseCan happen at any time, for any reasonPerformance is irrelevantSeniority is irrelevantNo termination as a result of a discriminatory ground (for example, no termination without cause because employee was absent due to an illness)
16 Termination of Employment Termination Without Cause (contd.)Employer must provide reasonable notice or pay in lieu thereofStarting point: employment contractNo contract: probably good news for employeeMust determine what reasonable notice is for each employee
17 Termination of Employment Termination Without Cause (contd.)Notice is based on employee's age, length of employment, nature of positionWas employee induced to leave secure employment? Notice goes up.Employer may decide to give working noticeIf no working notice, must be put in the same financial position as if given working notice.Payment can be made as lump sum or as salary continuation.Package must include everything: salary, bonus, commissions, benefits, stock options, vacation pay. Important: employee has duty to mitigate
18 Termination of Employment Termination Without Cause (contd.)Employer imposed time limits: take your time!Always take package home and consider speaking to a lawyerEmployer will want a releaseConsider if employer must pay lump sum (if payroll > $2.5 million)
19 Termination of Employment Constructive DismissalSignificant, unilateral, change to important contractual termGives rise to termination without causeEmployment contract is importantResign...or else...
20 WRONGFUL DISMISSAL Steps in Wrongful Dismissal Claim: Demand Letter: resolves vast majority of disputesStatement of Claim served by employeeEmployer has 30 days to serve Statement of DefenceMandatory Mediation (Toronto only): resolves close to 95% of employment lawsuits
21 WRONGFUL DISMISSAL Continued: 5. Examinations for Discovery (only for lawsuits exceeding $50,000)6. Pre-Trial Conference7. TrialTimelines:To mediation: 3 monthsTo trial: 8 to 12 months
22 Offices in Toronto and Mississauga SAMFIRU TUMARKIN LLPToronto Head Office:350 Bay StreetSuite 1000Toronto, OntarioM5H 2S6Mississauga Office:2 Robert Speck Pkwy.Suite 750Mississauga, OntarioL4Z 1H8Barristers & SolicitorsFor further information, please contact:Lior SamfiruTel: (416)Fax: (416)Offices in Toronto and MississaugaPresented by: Lior Samfiru and Peter CicakPrepared for: Mississauga Employment CenterTrusted.Dedicated.Experienced.