Enforcing Written Employment Contracts

| September 18th, 2014 | No Comments »

The manner in which an employment contract is written and the language employer’s use to deal with employee terminations can help ease the uncertainty with respect to how much it will cost to terminate an employee. The Courts maintain a very strict standard when it comes to enforcing these clauses and when poorly drafted, the Courts will not hesitate to disregard it.  Primarily, an employment contract should reflect current legislation and the minimum statutory entitlements.

Most employment contracts fail at the onset when the minimum statutory entitlements are not respected. In addition, the termination language needs to be such that it provides the employee with the minimum entitlement according to provincial or federal legislation. When this is not met, the Court will strike it down. To ensure that the termination language in an employment contract is written and enforceable follow these steps:

  • Keep it simple: Set out the specific amount of notice and/or pay. A complex clause can run the risk of being invalid if there is more than one interpretation.
  • Know your jurisdiction: Know the statute that applies. Some employers are provincially regulated, and some are federally regulated.
  • Know the applicable minimum standards and how they apply: familiarity with this will help ensure that the clause is compliant at all times.
  • Close the door on more damages: write the clause so that it does not permit an interpretation for additional payments.
  • Recommend independent legal advice: include this in the contract, it will help defuse the argument that the person was forced to sign or that they didn’t understand what they were signing.



Your employment rights regarding mental illness therapy

| September 3rd, 2014 | No Comments »

An employer-employee relationship can be impacted as a result of mental illnesses.  Depending on the diagnosis, these illnesses sometimes require medical treatment or counseling that may or may not be of interest to the employee.  While the employee has legal rights, so does the employer.  Readers want to know, when an employee refuses to accept treatment or counseling, are these grounds for termination and is counseling mandatory?

Employment LawyerDaniel Lublin gives his opinion and explains to readers that an employer’s request for mandatory therapy is illegal and discriminatory in nature.  Similarly, terminating an employee for refusing to participate in treatment is also discriminatory.  There is of course an exception to the rule which he explains is difficult to show.  Managing mental illness includes various types of therapy, which make matters for an employer that much more complicated. Misunderstanding these rules and terminating an employee for failing to attend mandatory counseling can lead to a human rights complaint.

It is always best to consult with an employment lawyer who can give you expert advice.  Daniel Lublin’s full article Can someone be fired for refusing therapy? can be read in his Globe and Mail column.

Everything you need to know when it comes to termination

| September 2nd, 2014 | No Comments »

An employee’s right to protect themselves from termination of employment is reasonable. Daniel Lublin, Toronto Employment Lawyer offers some insight on this topic in his most recent Globe and Mail column.

There are unfortunate incidents when an employee finds that it is necessary to file a complaint against a co-worker.  What happens when the employer does not address the situation properly or at all?  Mr. Lublin explains that formal or informal complaints need to be addressed.  An employer has a legal duty to investigate the complaint and take the necessary measures to prevent the issue at hand from occurring in the workplace. If your employer does not take proper action, an employee has alternatives.  He offers this piece of advice, it is a good idea to document in writing that you are making a complaint, although oral complaints still require the employer to act. If the complaint is based on bullying or harassment, there are other factors that can come into play.

In the event that an employee gives an employer notice of resignation in the long unforeseen future and the employer deems this an immediate resignation, what should an employee do?  Daniel Lublin states that you need to write to the employer immediately and repeat that you are not resigning and that you intend to keep working.  Since this was not a resignation of immediate effect, you can be entitled to more.

To find out more about these issues read Daniel Lublin’s Globe and Mail column and full article, How can I ensure I won’t be fired at a new job?

Protecting yourself from being dismissed

| August 29th, 2014 | No Comments »

Securing your employment is something every employee wants and it is reasonable for an employee to want protection from being dismissed.  In the worst case scenario, employees want to know, what legal options do I have to ensure that I am protecting myself from being terminated?  Toronto Employment Lawyer, Daniel Lublin explains some valuable insight in his most recent Globe and Mail column.

Imagine being a long-tenured employee being offered a new position with another company.  How can an employee protect themselves from termination during the first year? Mr. Lublin explains that leaving a long-tenured position for another company without protection is cause for concern. As an employee, you are entitled to negotiate your salary and the same applies to any other terms of your employment, including the termination language and probationary clause.   There are also events where employers allow their employees to take items home from work.  In the event that an employee is accused of stealing and then fired, what recourse does that employee have? Daniel Lublin offers his response by saying that you cannot steal when you have permission to take it. If this action was and is still condoned, you have options.

Read Daniel Lublin’s Globe and Mail column and full article How can I ensure I won’t be fired at a new job?

Is Mandatory Retirement Legal?

| August 15th, 2014 | No Comments »

Every employee is entitled to be protected and accommodated according to the law, based on certain grounds.  Two grounds for discrimination leave employees wondering what their legal rights are; age discrimination and sick leave based on disability.

Readers ask, is mandatory retirement legal? Daniel Lublin, Toronto Employment lawyer explains in his recent Globe and Mail article that mandatory retirement is in fact illegal. Employees are protected from age discrimination and cannot be forced to retire at 65 or any other number. The exception to this rule is where age plays a role in an employee’s ability to perform.

Another scenario is where employers will sometimes contract the services of third-party disability management firms to assist their employee’s in adjudicating their claims for benefits. The questions that arise from this situation are: are third-party firms entitled to information regarding my health condition? And what are my rights in relation to confidentiality and privacy?  Mr. Lublin explains that if you don’t provide the required health information, you can be denied benefits. These firms normally do not share your health information with employers.

Daniel Lublin’s full article Does mandatory retirement apply to contractors? can  be read in his Globe and Mail column.

Ex-employee soliciting former employer clients: is it legal?

| August 13th, 2014 | No Comments »

In his recent Globe and Mail column, Toronto Employment Lawyer Daniel Lublin, answers some of the most common questions that employers and employees alike have regarding termination of employment.

Ex-employees often want to understand whether soliciting their former employer’s clients is legal, especially when they have not signed a non-compete or non-solicitation clause. What Mr. Lublin explains is that unless you signed an agreement that unequivocally prohibits you from competing or from contacting clients for a reasonably defined period of time, you are generally allowed to do so. There are a few narrow exceptions to this rule, such as misuse of confidential information that you retained from your former employer (for instance, a client contact list) or in cases where you held such an important role at your former employer that they are particularly vulnerable to your actions after departure.

Employees often become confused between different terms when it comes to severance, and they want to understand the difference between severance pay and statutory severance pay . Mr. Lublin describes the difference between the two types of “severance.” Statutory severance pay is simply a minimum, like a minimum wage. This payment is legally required in most cases and is not dependent on the employer’s payroll size. Employees can be (and most often are) entitled to more than the statutory severance pay, just like they are often entitled to more than minimum wage.

When it comes to employment law, it is always good idea to contact an expert who will be able to provide more detailed advice and information about your legal rights. Daniel Lublin’s full article Can I contact clients from my former employer? can be read in his Globe and Mail column.

Employment law rights regarding your health benefits and origin of proceeding

| August 6th, 2014 | No Comments »

Employment lawyer, Daniel Lublin has answered some essential questions in the Globe and Mail regarding employment law rights. Read his responses to several readers’ questions below:


Is an employer legally permitted to reduce or eliminate an employee’s health benefits?


Employers can make only minor changes to your compensation without your consent. There is case law that states that anything more than a 15-per-cent change in compensation is a breach of contract that entitles you to leave your position and sue for damages while you look for another job. This is referred to as a constructive dismissal, but the 15-per-cent figure is just a guideline. Even a 5-per-cent change to your compensation may in some cases amount to a constructive dismissal.


Is it practical for employees who reside out of Ontario, but are working for an Ontario registered company, to sue in Ontario or in their local province?


It is an issue of choice. In Canada, a person or company who starts a lawsuit makes the decision on where to sue, but a defendant can challenge that choice if there was no real connection between the jurisdiction that was selected by the plaintiff and the case. Your strategic choice would weigh on whether or not you wish to travel to and from Ontario or the legal costs associated with enforcing a judgment in Ontario.

To read more of Daniel Lublin’s articles and find more information about your rights refer to “Employment rights regarding your health benefits and origin of proceeding”.

Can my employer change my regular work schedule?

| August 5th, 2014 | No Comments »

All work environments have different expectations for an employee’s work schedule.  A long term employee could be well adjusted to his/her schedule when they are told by their employer that it is about to change. Is an employer legally allowed to change the work schedule and what are the implications?


 Can an employer change an employee’s work schedule?  In my case, I was working 7:00am to 4:00 pm, Monday to Friday for the last 7 years and now my company has told me to work some evenings and some weekends.  Can I refuse?


An employer is permitted to set hours of work and to make certain limited changes to your hours of work.  Work environments are not static and employers can require employees to work outside of their regular working hours.  However, if the employer makes a significant change to your work schedule without your agreement, such as requiring you to regularly work evenings and weekends, this may trigger a constructive dismissal.  You can refuse to accept the change in hours, in which case the employer may terminate your employment.  In these circumstances, you are entitled to demand a severance package.  Even if the employer does not formally terminate your employment, you can resign from your job and demand a severance package as though your employment had been terminated.    Ultimately, the employee bears the onus of establishing that s/he has been constructively dismissed from their job.  There is no specific formula in terms of what type of change in working hours triggers a constructive dismissal.   Each case is decided on its own facts and in particular, decisions are based on whether the employee has other obligations or circumstances that may make the change in work hours particularly onerous.

Is favouritism a legal element for promotion?

| July 30th, 2014 | No Comments »

The workplace is an environment where favouritism can build.  The real question is, is it legal to promote someone based on favouritism? The Employment Lawyers at Whitten and Lublin explain this topic in a deeper context based on Human Rights Laws.


My question is about favouritism.  If I’m passed over for a promotion and I believe the process was unfair and biased, what legal options or remedies do I have?


Favouritism is not illegal.  A company can pick favourites and decide who to promote based on bias and not merit.  But there is one exception.  Its decision can be challenged if it was made based on illegal discrimination, such as age, race, religion, gender and disability.  If you were not promoted because your boss does not like you, there is nothing you can do.  But if that decision was made because your boss wanted a male in the role, for example, you could challenge it under human rights laws.  The key is proving the decision was linked to an illegal form of discrimination.  Although that is not always easy, if you have some evidence suggesting there was a personal bias due to a prohibited ground of discrimination, the legal onus shifts to an employer to demonstrate that its decision was not illegal.

What are my Vacation Rights?

| July 29th, 2014 | No Comments »

With long weekends coming around some employers might decide to substitute a working day for a vacation or an unpaid day and close the office.  Can you be forced to take a vacation day and what are your rights in that case? Whitten and Lublin, Employment Lawyers answer those questions explaining your vacation entitlements under the Ontario Employment Standards Legislation.


My employer closed our office on June 30th in order to give all employees a 4 day long weekend for Canada Day.  We were given two options: take a vacation day and be paid or take a day unpaid.  Is it legal for my employer to close the office and only offer these two options?  I live in Ontario.  If this is against the legislation, how can I make an anonymous complaint?


You cannot be forced to take a single vacation day.  Ontario’s employment standards legislation allows you to insist on taking your vacation in one or two week blocks.  The rule is similar in most other Provinces.  If you did not want to use June 30th as a vacation day and you earn a fixed salary (that is not based on the number of hours that you work in a week) you are still entitled to pay for that day, even though the office closed.  You can file an anonymous or named complaint with the Ministry of Labour, who will investigate the alleged breach and can take steps to remedy any wrongdoing including an award of compensation or an order to comply with the legislation in the future.