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Posts tagged: Barrie Employment Lawyer

How Important Are The Deadlines In Your Severance Package?

By , December 6, 2018 1:43 pm

You are terminated from your job and your employer offers you a severance package. They give you one week to sign the offer and ask that you sign a full and final release confirming that there will be no further payments. Are you obligated to sign and return the offer within a week?

We often receive this question from recently terminated employees who are scrambling to find legal advice within a few days while also dealing with the stress of their termination.

If we are first contacted close to the deadline we often advise employees to simply request an extension from their employer. In our experience, the vast majority of employers will consent to this request. It is important to remember that it is in your employer’s best interest to reach a reasonable deal with you.  Just because you do not sign and accept their severance package before the deadline, does not make their legal obligations to you disappear. Further, the deadline is only important if you are accepting the offer.

You should have your severance package reviewed by a lawyer before accepting it because, in many cases, it is possible to negotiate a better severance package. It is not unusual for employers to offer severance packages that barely meet the minimum standards set out in the Employment Standards Act. You may be entitled to considerably more pay than the minimum standard.  Even if have signed an employment contract with a legally enforceable termination clause, it is possible that you could be entitled to a large severance package because of conduct that occurred during your employment such as harassment and discrimination. Unless you are certain that their severance package is fair you should not sign a severance offer and release until you have consulted with a lawyer.

At least one Ontario judge has unfavourably viewed stringent deadlines requiring an employee to sign a severance package and release.  In Rubin v. Home Depot Canada Inc., 2012 ONSC 3053 the Court found that even though an employee had signed a “release” shortly after his termination, the release was not binding. The Court found that the employee had not been given sufficient time to consider the offer.  Ultimately the Court awarded him significantly more notice than his employer had offered him.

Lessons for Employees:

  1. If you need more time to obtain legal advice ask your employer for an extension to sign the severance package, particularly if you are given less than 5 business days to consider the settlement offer.
  2. Always consider having your severance package reviewed by a lawyer because it is possible you could be entitled to a greater notice period. Especially if you are a long service employee. Remember: you don’t know what you don’t know.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Are You Still Entitled to Employment Insurance If You Quit?

By , October 17, 2018 11:24 am

Under the Employment Insurance Act, both employers and employees are required to contribute to Employment Insurance (“EI”) premiums. The objective of  EI benefits is to provide temporary income support to unemployed workers while they search for new employment. It is well recognized that terminated employees are entitled to receive EI benefits. But what if an employee resigns?Are they still the entitled to receive EI?

In general the answer is no. If an employee voluntarily leaves their employment this would disqualify them from receiving EI. “Voluntarily leaving” means that the employee (not the employer) took the initiative  to end the employment. However, this general rule is subject to a caveat. If an employee resigns, they may still be entitled to receive EI benefits if they had ‘just cause” to quit. In other words, they could still be entitled to receive EI if they can prove that quitting their job was the only reasonable alternative.  An employee is expected to have tried other ways to resolve the workplace issue before quitting.

However, there are some circumstances outlined by Service Canada that constitute a situation where resigning may be the only reasonable alternative. This includes situations of sexual harassment, work that endangers health or safety, the need to provide care to an immediate family member or negative changes to your salary/wages.  A few months ago I represented a client who resigned from his employment after his employer threw a saw at his workstation. Despite the fact that the employee resigned following the incident, we maintained that he was still owed EI benefits. The Social Security Tribunal agreed and determined that the employee had no reasonable alternative than to resign due to the threat to his health and safety.

Lessons to Employees

  • If you quit you may not be entitled to receive regular EI benefits however , depending on your circumstances, you could still qualify to receive maternity, parental, sickness or compassionate care benefits.
  • Before quitting your employment, you should consult a lawyer to determine your legal rights and entitlements.

If you have questions about your rights at works regarding harassment and violence protections and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Increased Federal Protections Against Harassment and Violence

By , October 12, 2018 12:18 pm

The Federal government is consulting the public on changes to the Canada Labour Code (CLC) to increase protections against harassment and violence. Federally regulated employees, like those who work for banks, airlines, telecom or national transportation companies are covered by the  CLC.

The government proposes to set solid guidelines in order to resolve and prevent workplace harassment and violence.  

In particular, the consultation will look at how federal employers deal with family or domestic violence of their employees and how they deal with non-workers in the workplace. The proposed changes further cover supports that will be provided to the parties if harassment and violence occur in the workplace.

The government asked for input about the resolution process and timeframes involved, the content of what should go in an investigation report, and elements of workplace violence and harassment prevention policies and training.

Provincially, the Occupational Health and Safety Act has covered harassment and violence obligations on employers for several years. To learn more about your rights under OHSA, read on here.

If you have questions about your rights at works regarding harassment and violence protections and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

What to do when you receive a release from your employer?

By , September 26, 2018 10:00 am

When an employee is terminated and offered a severance package, they are almost always asked to sign a release agreement in exchange. A release agreement, as the name suggests, releases the employer from liabilities for employment-related claims. Thus, after an employee has signed a release agreement, if they attempt to sue their employer later on, the release agreement is typically raised as a bar for the employee to proceed with litigation.

There are certain circumstances in which a court will not enforce a release. The Ontario Superior Court of Justice recently allowed an employee to proceed with claims against his former employer regarding long-term disability (“LTD”) insurance, even though he had signed a release in exchange for the severance package when his employment ended.

Facts

In Swampillai v Royal & Sun Alliance Insurance Company of Canada, Mr. Swampillai worked for the employer for several years before he became disabled from working and began receiving LTD benefits. After two years, the insurance company advised he was no longer qualified for benefits. Mr. Swampillai retained a law firm to appeal the LTD denial, and while that appeal was ongoing, the employer advised him that his employment was being terminated. His employer offered him an amount that exceeded his minimum entitlements under the Employment Standards Act, 2000 (“the ESA”) for pay in lieu of notice, and an additional lump sum amount for loss of benefits. Mr. Swampillai was told that if he did not accept the offer and sign the release, the offer would be revoked and he would only receive his ESA entitlements. After some negotiation regarding the amount for pay in lieu of notice, Mr. Swampillai signed the release, which purported to release the employer and insurance company from claims regarding his LTD benefits.

As a result, both the employer and the insurance company brought a motion for summary judgment asserting that the employee was not entitled to make any claim against the employer for disability benefits, or against the insurance company for the administration of those benefits.

Decision

The court found that the release was unconscionable as it related to Mr. Swampillai’s LTD claim, and that Mr. Swampillai was allowed to proceed with the LTD claim despite the language in the release that precluded him from doing so. In other words, although the court found the release was legally binding with respect to the pay in lieu of notice, the court declined to enforce the benefits aspect of the release because it was too unfair to Mr. Swampillai, a vulnerable employee.

The test for unconscionability has four elements:

  1. A grossly unfair and improvident transaction;
  2. The victim’s lack of independent legal advice or other suitable advice;
  3. An overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or other similar disability; and
  4. The other party’s knowingly taking advantage of this vulnerability.

The court noted that there had not been money specifically allocated towards releasing the LTD claim, that the employer knew Mr. Swampillai was in the process of appealing the denial, and neither the employer nor the insurance company drew Mr. Swampillai’s attention to the fact that the release would bar him continuing in that process.

Lessons to be Learned

Although this story had a happy ending for Mr. Swampillai, it is important to highlight that generally speaking, courts do not take it upon themselves to intervene when people have been handed a raw deal. Therefore, when presented with a release, it is always recommended that you speak to a lawyer so you understand the true nature of the deal you have struck.

However, as this case illustrates, there may be instances where a court does intervene, particularly when dealing with a vulnerable employee.

If you have received a release and want to review it with a lawyer, or if you have cold feet after signing a release and want to know if there is any way around it, you can contact an employment lawyer at MacLeod Law Firm at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Can an Employer Refuse to Hire You Because You Are Not a Permanent Resident or Citizenship of Canada?

By , September 25, 2018 1:04 pm

Have you ever been denied a job interview or a position based on your citizenship status? Some employers have attempted to develop pre-employment requirements and policies to deal with the tension between devoting time and resources to new employees and hiring someone who may be temporary.

A recent decision from the Human Rights Tribunal of Ontario makes it clear that you cannot be discriminated against when applying for a job position based on your citizenship status. This is provided that you are eligible to work in Canada and that the position you are applying for does not require citizenship as a legal requirement.

Citizenship Status: Permanent, Temporary or Citizen?

In this precedent-setting decision, the Tribunal ruled in favour of an employee alleging discrimination in employment because of the pre-employment requirement that job applicants be able to work in Canada on a “permanent basis”, meaning either being citizen or a permanent resident of Canada.

Permanent residency is provided to individuals who are immigrating to Canada but are not Canadian citizens. Those with permanent residence status in Canada are citizens of other countries. Permanent resident status must be maintained or it can be lost.

A person who is in Canada temporarily is not a permanent resident. This includes foreign workers and international students, as was the situation in the decision below.

After meeting certain residency requirements, permanent residents can apply to become Canadian citizens.

Haseeb v. Imperial Oil Limited, 2018 HRTO 957

Facts

Mr. Haseeb was an international student who graduated with an engineering degree from McGill University. He applied to work for Imperial Oil Ltd during his final semester, while he was on a student visa. Upon graduation, he would become eligible for a postgraduate work permit for a fixed term of 3 years. This permit would allow Mr. Haseeb to work with any employer anywhere in Canada.

When Mr. Haseeb applied to Imperial Oil, he was aware of their policy which required graduate engineers to have either permanent residency or citizenship to be eligible for a permanent and full-time position as a Project Engineer. Mr. Haseeb repeatedly misinformed Imperial Oil throughout the recruitment process that he was eligible to work on a permanent basis in Canada.

He expected to attain permanent residency status within 3 years, after which he could settle and work in Canada indefinitely. However, at the time of recruitment, he lied and stated he met Imperial Oil’s “permanency requirement” when he knew that he did not.

Mr. Haseeb received a conditional offer of employment, with one condition being that he provide proof of his eligibility to work in Canada on a permanent basis. Imperial Oil required proof in the form of a Canadian birth certificate, Canadian citizenship certificate, or a Canadian certificate of permanent residence. Since Mr. Haseeb could not provide such proof, the job offer was revoked.

Decision

Imperial Oil unsuccessfully argued that it was Mr. Haseeb’s misrepresentations during recruitment that led to the job offer being revoked. The Tribunal found that Mr. Haseeb’s dishonesty was not relevant in assessing whether the Code was breached. The Tribunal stated that “…“but for” IO’s permanence requirement, the applicant would have no need for a ruse to circumvent the requirement.”

The adjudicator concluded that Imperial Oil’s policy of asking job applicants about their citizenship and immigration status was discriminatory based on the ground of citizenship. The eligibility of job applicants was based on their response to the question about their eligibility to work in Canada on a permanent basis, a requirement that was not necessary and linked to the essential duties of the position. For instance, Imperial Oil had occasionally hired experienced engineers in the past who did not meet their permanency requirement policy but did possess a skill set in high demand.

Further, Imperial Oil was unable to convince the adjudicator that their policy was an employment strategy that directed at grooming the best recruits.

Importance

This decision is significant because it clarifies that employers cannot exclude a job applicant based on his or her citizenship status. An employer can ask about your legal ability to work in Canada but the inquiry should stop there. This important clarification can have a positive impact if you have temporary status in Canada because gaining work experience after graduation is an important step on the path to obtaining permanent residency. However, it remains to be seen whether Imperial Oil will appeal this decision.

If you would like more information on discrimination based on your citizenship status and/or your rights in the workplace, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

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