Regulatory-Compliance-Books-2Common employment law issues

I speak with human resources professionals every day about various employment issues. This post deals with five of the most common issues.

Termination pay

In many organizations, labour costs often account for more than 50 per cent of the cost of doing business. Reducing head count is one way to reduce labour costs. we are often asked how to minimize the termination costs associated with an employee termination. There are many factors that you can take into account. In our experience, the more lead time you provide your HR consultant about a potential termination the better.

Employment contracts

Not all employment contracts are the same, If you are using an employment contract you obtained on the Internet then you likely are getting what you paid for. I strongly recommend that every new hire be required to sign a properly drafted employment contract with an enforceable termination clause. It is an extremely powerful management tool and can significantly reduce your termination costs. Given changes in statute law and the common law, I suggest that you review your employment contract every year or two. Ontario courts have recently concluded that certain termination clauses are not enforceable and in wrongful dismissal actions employees are routinely claiming their termination clause is not enforceable?

Accommodating disabled employees

Over the last two or three years, I would say this is the fastest growing area in employment law – particularly employees with mental disabilities. On January 1, 2016 the Employment Standards under the Accessibility for Ontarians with Disabilities Act took effect. Among other things, it requires certain employers to prepare individual accommodation plans for an employee who seeks accommodation. In addition, we are seeing many human rights complaints alleging discrimination on the basis of mental disability.

An employer’s obligations under the Employment Standards Act vis a vis the common law

Many small employers think the Employment Standards Act (ESA) sets out its only obligations toward employees. For example, an employer is required to provide a minimum amount of notice of termination to employees under the ESA but unless an employee has signed a contract with an enforceable termination clause then the employee is generally entitled to “reasonable” notice of termination, which is almost always more than the ESA minimums. Similarly, an employer is entitled to temporarily lay off an employee under the ESA but unless the employee has agreed that an employer has the right to temporarily lay her off in her employment contract then this kind of layoff is generally an employee termination which requires notice of termination.

Harassment complaints

There are two kinds of harassment complaints. One is harassment under the Ontario Human Rights Code, such as sexual harassment. The other is workplace harassment under the Occupational Health & Safety Act. There are different obligations and legal exposure for each type of complaint. Accordingly, I suggest a different response to each kind of complaint. I do however recommend that an employer take all “harassment” complaints seriously and investigate them promptly.

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