In most cases, an employer can terminate
an employee's job at any time but the Employer must provide the
employee with sufficient "notice" or sufficient termination pay
(known as "pay in lieu of notice"), in advance of the termination.
If adequate notice has not been given, the employee may then sue
the employer for damages in "wrongful dismissal". If, on the other
hand, an employee has been terminated for "cause" (i.e. an alleged
wrongdoing), then the employee is not entitled to any notice or
pay in lieu of notice. Under the Employment Standards Act, an employee
who has been terminated without notice or pay in lieu of notice
is entitled to the following notice periods based on their length
of employment:
| Length of Employment: |
Notice
Required (weeks) |
| Less than 3 months |
None |
| 3 months but less than 1 year |
1 |
| 1 year but less than 3 years |
2 |
| 3 years but less than 4 years |
3 |
| 4 years but less than 5 years |
4 |
| 5 years but less than 6 years |
5 |
| 6 years but less than 7 years |
6 |
| 7 years but less than 8 years |
7 |
| 8 years or more |
8 |
Special rules apply in the case of
"mass terminations", where 50 or more employees are terminated by
an employer within a four-week period. Depending on the terms outlined
in an the employee's contract of employment, an employee may be
entitled to receive more than the Employment Standards Act notice
periods listed above.
If an employer unilaterally changes
the terms and conditions of an employee's employment without obtaining
the employee's consent to the changes, the employee may be entitled
to sue the employer for "constructive dismissal".
Constructive dismissal is a complex
area of the law. A constructive dismissal may occur when an employer
makes a significant change to a fundamental term or condition of
an employee's employment without the employee's actual or implied
consent. For the purposes of the Employment Standards Act, the employer
will be considered to have terminated the employee's employment
if the employee resigns within a reasonable period of time after
the constructive dismissal. If an employer makes changes to an employee's
terms and conditions of work which affects an employee's salary
or such things as their hours of work, authority or position, work
location etc., an employee may sue for constructive dismissal. Constructive
dismissal may also include situations where an employer harasses
or abuses an employee, or where the employer forces an employee
to either quit or be fired.
A written contract will be the document
referred to if a dispute arises in an employment relationship. The
advantage to having a well written contract is that it clearly outlines
the terms and conditions of employment and defines the obligations
and expectations of each of the parties involved.
At a minimum, a contract of employment should contain
the following:
- The date employment begins;
- The job title, duties and responsibilities;
- The remuneration and compensation associated with the position;
- Provisions relating to termination.
Some contracts of employment contain
restrictions on an employee's ability to solicit customers upon
their departure, or to work with other competitors within a certain
geographical area or for a period of time.
These clauses must be examined closely
to ensure that they are not unreasonably preventing an employee
from making a living within their chosen career.
Remember, what is contained in an
employment contract will depend on the nature of the particular
industry involved and the type of position being contracted for
(i.e. executive or non-executive). For example, an employee hired
into the high-tech industry may require certain provisions related
to patents associated with inventing products and a sales employee
may require provisions related to commission schemes and expense
allowances.
Until recently, absent provisions
in an employment contract certain employees were not entitled to
take leave for emergency situations.
Under the Employment Standards Act, an employee whose employer regularly
employs 50 or more employees is entitled to 10 days of unpaid leave
in the following circumstances:
- A personal illness, injury or medical emergency and Death,
- illness, injury or medical emergency of or urgent matters relating
to
- a spouse or same-sex partner
- a parent, step-parent, foster parent,
- child, step-child, foster child,
- grandparent, step-grandparent, grandchild or step-grandchild
of the employee,
- the employee's spouse or the employee's same-sex partner
- the spouse or same-sex partner of an employee's child a brother
or sister of the employee
- a relative of the employee who is dependent on the employee
for care or assistance.
In some situations an Employer has
its own written or unwritten policies offering employees such leave
as bereavement leave, short-term sick leave or leave to care for
a child or aging parent. In these situations, if the terms of the
particular leave policy provide a greater right or benefit to the
employee than what is outlined in the ESA, the leave policy applies
and not the employment standard.
Unfortunately, employees who work
for an employer that regularly employs fewer than 50 employees are
not entitled to Emergency leave under the ESA. Any leave entitlements
these employees have would flow from the terms and conditions of
their employment.
When an employee has been temporarily
or indefinitely laid off, they may have grounds to sue for constructive
dismissal unless there is a term in their employment contract allowing
for such a lay-off to occur.
In such a case, the lay-off constitutes
a fundamental change to the conditions of employment (i.e. that
they be paid for the work done) and the employee will be eligible
for pay in lieu of reasonable notice (See related questions dealing
with constructive dismissal and pay in lieu of notice).
An independent contractor is an individual
hired by an employer for a contract for service
whereas an employee is an individual who has been hired for a contract
of service.
An independent contractor is hired to perform a specific
task or tasks and is considered an adjunct to the employer’s
business. He or she is usually performing the task or tasks as part
of their own business. An employee is hired as part of the business
and the work done is considered an integral part of the employer’s
enterprise. The employer often has a greater amount of control over
the employee’s work (e.g. how it is to be done, where and
when).
The impact of being an independent contractor as opposed
to an employee is significant in law since independent contractors
do not possess the same employment protections as employees do.
Sometimes employers will call an individual an independent contractor,
even though the relationship is one of employer—employee,
in order to limit their legal liability and responsibilities to
the individual.
Being designated an employee as opposed
to an independent contractor is of great significance in Canadian
law since “employees” enjoy greater employment protection
at law and under most employment-related legislation than do independent
contractors. .
For example, while independent contractors may enjoy
greater tax advantages than employees (i.e. they do not have to
make statutory deductions from their pay and can deduct most employment
related expenses), they are not subject to the Employment Standards
Act, which means that they do not enjoy the benefits of minimum
wage, overtime hours, vacation leave or other ESA protections. In
addition, if an individual is found to be an independent contractor
and has been terminated without cause, they are unable to sue for
wrongful dismissal.
The bottom line is that your employment status as
an independent contractor will impact your legal rights and limit
the obligations your employer may have towards you.
Simply being labeled or designated
an independent contractor or employee does not mean that you are,
in law, an independent contractor or an employee. Sometimes employers
will call an individual an independent contractor in an employment
contract in order to limit their employment obligations to them.
In determining whether an individual is an independent
contractor or an employee the crucial question to ask is “Whose
business is it?” If an examination of the employment relationship
reveals that the individual is conducting business on their own
behalf, they will be found to be an independent contractor. In answering
the question “Whose business is it?” the courts will
look at such factors as:
- Was the individual subject to the control of the employer?
(e.g. the way the work is done, the time it is done and when and
where it is to be done)
- Did the individual invest or have an interest in obtaining the
tools necessary to carryout his/her work (e.g. purchase a vehicle)?
- Did the individual undertake a significant financial risk?
- Did the individual profit in the performance of his or her tasks?
- Did the individual hire other individuals to assist him/her?
- Did the individual work only for one employer or did he/she
work for other employers?
The above factors are not exhaustive and the courts
will look at the nature of the employment relationship as a whole
to determine whether an individual is truly an employee or an independent
contractor.
Depending on the nature of the injury and how it was caused, you
may be sued personally, either in the civil courts or in the criminal
courts. If the injury was caused as a result of your negligence,
the employer may be vicariously liable for your behaviour and your
employer can also be sued.
An employer is entitled to the undivided commitment of the employee during the employee's regular work hours. A conflict of interest may arise if the employee engages in direct economic competition with the employer or if the conduct done is in potential conflict with the employer. In both cases, the employee may be terminated for cause. This is true whether there exists an explicit workplace policy dealing with such conflicts of interest or not.
It is no defence that the employee carried on activities during off hours without using the employer's facilities. Such conduct is generally viewed as a breach of confidence and trust in the employee/employer relationship.
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