Toronto Employment Lawyers
The Toronto employment lawyers of Evenson Bundgard LLP offer wide-ranging services in advice and representation across the field of employment law, including:
Employment/service contract negotiation and drafting
The contractual relationship between an employer and the non-unionized, individual employee can be complex and evolving. At the outset, the relationship may be characterized by mutual respect, with each party holding an expectation of cooperation and benefit. Unfortunately with time, such rosy perspectives may deteriorate, and be replaced with a relationship marred by suspicion, discord, disrespect, and even at times hostility – all of which are deeply corrosive to the longevity of the association. This assessment may be equally true of the relationships where one of the parties is not an employee but rather an independent contractor.
Every relationship of employment or for contractual services has its unique circumstances and course. However, one of the best means of promoting that it is imbued with positive rather than negative characteristics is straightforward: the parties, at the outset of their association, should commit to defining clearly their respective rights, obligations and expectations in a concise written contract tailored to their specific needs. Clarity and transparency of the contractual terms can help minimize frictions arising during the relationship. An appropriately drafted contract can focus productive and respectful discussions toward a satisfactory resolution of the relationship if, and when, the relationship is terminated at the instigation of one of the parties.
By written contract, the parties can stipulate a whole host of matters governing their relationship. Depending upon the contractual nature of the relationship, the parties may include provisions addressing such concerns as work duties, performance standards, compensation, term of employment/contract, and termination rights − provided their agreement complies with the applicable range of minimum statutory and regulatory requirements and/or common law standards. Through discussion, the parties can also renegotiate the substantive terms of their contractual relationship as their respective needs, economic demands, and circumstances evolve with the relationship over time.
The process of negotiating a suitable employment or services contract can be a daunting task, no matter a party’s level of experience or sophistication in employment activities. Whether you are an enterprise employer, an employee, or an independent contractor, Evenson Bundgard LLP’s Toronto employment lawyers have the experience to help maximize the protections and entitlements available to you in the process of employment contract negotiation and drafting.
Contract termination, wrongful dismissal disputes and litigation
The unilateral termination of a workplace contract can present many challenges, both for employers and employees/independent contractors. Has there actually been termination of the contract? Was it “wrongful”? If so, what is the appropriate remedy? Has the aggrieved party mitigated any quantifiable losses? Unless such issues are satisfactorily resolved, costly litigation may ensue.
Foremost as an issue to resolve may be securing the parties’ agreement on key matters, even if the relationship has ended. Often, the fact of termination is clear and undisputed: for instance, where an employee gives notice and quits work; or where an employer provides to the employee a letter notifying unequivocally of the termination of employment. In other scenarios it may not be so obvious that the relationship is over: by example, what is the status of the relationship when an employee has experienced long-term work absence due to medical illness, or when the employee’s work duties have been appreciably altered? In these latter situations, can it be said authoritatively that the employer-employee relationship truly is over? Perhaps, if there has been a fundamental breach of the relationship by frustration of contract or by constructive dismissal of the employee. However a proper assessment necessarily will depend on consideration of the unique facts and circumstances of each relationship.
In case of an employment relationship, a wide array of factors such as the existence of negotiated contractual terms, years of service, the age of the employee, the nature of the employee’s position, the availability of alternative work, the underlying causes for the rupture of the employment relationship including employee misconduct – even the manner and the timing of the termination itself – all may help drive the consequential range of potential common law, statutory, and contractual remedies available to the aggrieved party. Where the termination has been initiated by the employer, a key determinant for the availability of a remedy to the employee is whether the termination is with, or without, “just cause”. If a termination is without cause, and no or inadequate compensation is offered, or if minimum statutory protections seemingly are not honoured, then there may be grounds to allege a “wrongful dismissal”. An employee wrongfully dismissed may be entitled to claim and sue for an array of remedies, including but not limited to pay in lieu of appropriate working notice, a lump sum severance payment, and benefits continuation − even potentially reinstatement of the employment contact in special circumstances.
Where the termination has been initiated instead by the employee, it is the employer who could be entitled to a scope of remedies, such as damages or a time-limited ban binding the departed employee from competing against the employer in the same marketplace or from soliciting the employer’s clients or other employees.
Regardless of who may have caused the end of the employment relationship, evolving case law − including the Supreme Court of Canada’s recent decision in Potter [2015 SCC 10 (CanLII)] − has confirmed that the contracting parties owe each other good faith duties both in the maintenance and in the termination of the relationship. A failure by one party to uphold these duties toward the other party can result in significant adverse legal repercussions.
For independent contractors, similar considerations may apply. Primacy however is given to the terms of any written contract governing their relationship with their principal: if clear and unambiguous, the written contract may help determine the respective parties’ rights and obligations upon termination.
Evenson Bundgard LLP’s Toronto employment lawyers provide a full range of legal services, including advice and litigation representation, to both employer and employee/independent contractor clients respecting the termination of workplace relationships in order to maximize protection of client rights and recourse to effective remedies.
Employers large and small often need effective policies to help govern their workplace. Polices can address the conduct of their workers on-site, and in work-related activities or functions that may occur away from the regular worksite. While some polices may be optional, others, including appropriate workplace harassment and workplace violence prevention policies and effective programs to implement them, may be mandated by law. The creation and implementation of relevant and effective policies can be a challenging task. Many considerations must be brought to bear; many interests may need to be balanced. Employers must also ensure that their policies are created and implemented in a manner which does not offend the guaranteed protections that may be afforded to employees (and often other persons, including outside members of the public) under individual contract law, the common law, and statutory and regulatory law − including applicable human rights legislation.
If a worker violates valid employer policies, there may be serious adverse repercussions applied to the worker: the employer may be entitled to impose a range of disciplinary actions which could extend, in appropriate situations, to “just cause” dismissal of the employee, or termination of a worker’s services contract. Conversely, the failure of an employer to establish and maintain effective workplace policies could expose the employer to significant claims for damages in cases of serious loss or injury by workers or affected third parties.
Evenson Bundgard LLP’s Toronto employment lawyers can help employers and employees effectively in the drafting, renewal, and implementation of a whole host of relevant policies, programs, and procedures impacting the workplace.
Workplace Harassment Disputes
Workplace harassment disputes can cause serious disruption in the workplace and be highly stressful for all those affected: emotions are charged, and reputations may be jeopardized. Harassment allegations (sexual or otherwise in substance) should be addressed promptly, effectively, and with sensitivity. Appropriate policies and procedures for investigating and resolving such allegations should be established and followed as a means to protect the physical and emotional security of all those concerned and, to the practical extent allowed or indicated in the circumstances, to protect workplace reputations and confidences. The role of the employer in responding effectively is paramount: appropriate investigation, worker support, and remedial action can help defuse or rectify situations, restore broken relationships, and return harmony to the workplace as quickly as practicable. Conversely, inappropriate investigation, lack of appropriate worker support, or inconsequential remediation of the situation can lead to a host of miseries, including damaged worker morale, illness claims and medical leaves of absence, and possible exposure to costly and embarrassing lawsuits and/or human rights violation claims.
Evenson Bundgard LLP’s Toronto employment lawyers have the experience to help employer and employee clients navigate the challenges and hazards of workplace harassment disputes.
Workplace Disability Accommodation
Workers returning to active work from on-the-job injuries have rights under workplace safety legislation to require accommodation from their employer while they transition back to work. More broadly, any worker who suffers from ongoing disabling illness has the right under applicable human rights legislation to seek workplace accommodation. “Accommodation” may mean different things in different contexts. Accommodation may require an employer to provide assistive devices to a worker, or additional time off work to attend for treatments, or a reduced workload, or a differing bundle of job tasks in comparison to another worker’s or to that same worker’s pre-injury/pre-disability job tasks. The goal in accommodation is to situate a worker to perform valuable and productive work for the employer.
The situations in which accommodation reasonably may be requested, and the timing and the extent to which accommodation reasonably must be offered, can be contentious issues. Much will turn on the quality of the available medical and related evidence, and the nature of the workplace. Evenson Bundgard LLP’s Toronto employment lawyers have the knowledge and experience to assist both client workers and employers in the complex arena of workplace disability accommodation law.