Many employees are surprised to learn that most employers outside of the unionized context are free to end an employment relationship without having to prove “just cause” for termination.  The rules are different in the unionized context and for employees in certain federally regulated industries such as banking and telecommunications.  In some cases, a termination may be tainted by human rights related discrimination or a reprisal for an employee’s exercise of rights under the law.  In these cases, there may be avenues for challenging a termination decision.  However, for the majority of employees in Ontario facing termination, their main recourse is through the law of wrongful dismissal.

Wrongful dismissal is a term that describes the termination of employment by an employer without providing sufficient notice of termination.  Where a termination is without “just cause”, an employer may still terminate an employee by giving reasonable notice of termination or pay in lieu of notice of termination.  The payment in lieu of notice is what is commonly referred to as a severance or separation package.  It is not always easy to assess how much notice an employee is entitled to. Employees are entitled to their minimum entitlements under the Employment Standards Act or Canada Labour Code, but they are also frequently entitled to a longer notice period based on the common law (law developed through the decisions of judges).  There are often questions regarding whether benefits, bonuses, pension contributions and other forms of compensation are included within the separation package.  There are also special circumstances that may give rise to additional rights and obligations.  There are a wide range of factors to consider when determining how much employee should receive.  We carefully consider and assess each case in order to help both employers and employees understand the legal rights and obligations that arise at the end of the employment relationship. 

An employer who has “just cause” to terminate the employment relationship is not obligated to provide common law notice of termination.  Just cause is generally very serious employee misconduct.  In some circumstances, “just cause” may exist if the employee has failed to perform his or her job duties, or has done something seriously wrong, such as stealing from the employer.  Given the wide range of behaviour that may constitute just cause, the evidence required to prove cause, and the costs involved in wrongly asserting cause, an employer is wise to obtain legal advice before terminating an employee for cause and an employee should consider whether there may be basis for challenging an employer’s allegation of cause.

Canada Labour Code Unjust Dismissal

Certain employees in federally regulated industries such as banking and telecommunications are governed by the Canada Labour Code.  The Canada Labour Code allows non-managerial employees who have completed 12 months of continuous employment and who are not subject to a collective agreement, to challenge an employer’s dismissal decision.  The Canada Labour Code provides additional rights to federally regulated employees that go beyond the traditional wrongful dismissal claims available to most employees in Ontario.  As part of our intake process, we assess whether employees have rights under the Canada Labour Code and we have experience successfully pursuing unjust dismissal complaints for employees in the federal sector.

For employees, we provide comprehensive severance package review and strategy. Many employees wrongly assume that when they are terminated, they are only entitled to their minimum entitlements under the Employment Standards Act or Canada Labour Code. This is often not true. 

In our initial consultation process, we review the severance package, discuss the terms of employment and explain what a fair severance package would be, based on the specific circumstances.  We then work closely with employees to develop a strategy to obtain enhancements to the package while minimizing costs to the employee. Because we specialize in employment law, we have in-depth knowledge of the relevant issues and considerations, as well as extensive knowledge of leading cases and developments in this area of the law.

On the employer side, once the decision to terminate has been made, we help employers through the process of preparing the severance package, advising on the appropriate amount to offer the employee, drafting the termination letter and release, and finalizing the severance agreement. Working closely with employers, we develop thoughtful, practical strategies to minimize their risk when faced with the need to terminate employees.

Generally, when employees quit their jobs, they are not entitled to receive any compensation for the end of their employment from their employers. However, when an employee leaves employment because the employer has changed a fundamental term of the employment agreement without the employee’s permission, a court may find that the employee was constructively dismissed. In such circumstances, the employee will be entitled to the same notice period, or pay in lieu, that he or she would have been entitled to if the employer had terminated the employment.

Not all changes to an employment agreement will be so fundamental that they give rise to a constructive dismissal claim. Examples of fundamental changes include significant reduction in compensation, a requirement to relocate (where such relocation was not provided for in the employment contract), and significant changes in title, duties or responsibilities. There have also been decisions in which courts have found employees to have been constructively dismissed when the employer’s abusive treatment of the employee rendered continued employment intolerable.

Constructive dismissal cases can be difficult to make. The onus is on the employee to prove that he or she has been constructively dismissed. This involves proving both that the employer acted unilaterally, and that the change was fundamental. Because constructive dismissal cases are so fact-specific, they require a careful assessment of the employment conditions, the employer’s proposed changes, whether the employer has provided sufficient notice of the change, and whether or not the employee accepted the proposed change.

Employees should speak with a lawyer and obtain legal advice before they decide to leave their jobs and sue for constructive dismissal. Similarly, employers who want to implement a significant change to an employment agreement should obtain legal advice about how to do so without becoming exposed to a constructive dismissal claim.

Written employment contracts are often extremely important in defining the terms and conditions of an employment relationship.  Unfortunately, it’s an area where mistakes are often made.

Too frequently, employees sign contracts without having legal counsel review them first, only to find—at the end of the employment relationship—that they have signed away important rights. On the employer side, many employers work with templates that are often out of date, fail to meet legal requirements or are overreaching.  As a result, employers often have difficulty enforcing the contracts, or they find that the contracts  were inadequate to begin with. The end result is that the contracts that were meant to protect them fail to protect their business interests.

A lack of attention at the time that contracts are entered into often leads to significant disputes – disputes that could likely be avoided.  At Karimjee Greene LLP, we draft customized employment contracts for employers to address the unique circumstances of their workplace.  

For employees, we review and negotiate employment contracts with a view to protecting employee rights during and after the employment relationship.  In addition, we are often called upon, on referral from full service firms, to provide independent counsel to executives on employment contracts within the context of commercial transactions.

The laws dealing with workplace violence and harassment have recently undergone considerable transition.  We help employers comply with this evolving area of the law by advising on risk assessments, drafting policies and procedures which are consistent with legal requirements and best practices, and providing ongoing and targeted employee training. 

We also advise and advocate for employees who find themselves dealing with issues of violence and harassment in the workplace. 

We take the role of ‘trusted advisor’ seriously. We recognize that it is sometimes necessary to engage in litigation, and we have a strong track record in that area. But we also help our clients manage workplace issues before they become legal problems. We do this by providing timely and practical behind-the-scenes advice throughout the employment relationship.

From drafting employment contracts that will minimize the costs of termination down the road, to developing workplace policies that effectively deal with a host of issues in the workplace, such as bullying, workplace harassment and social media use, we work with our employer clients to put the documents and processes in place that will assist them in proactively managing human resource issues. 

When problems do arise, we provide sound recommendations for how best to manage performance issues and, if the time comes, we help our clients through the process of preparing the severance package, advising on the appropriate amount to offer the employee, drafting the termination letter and release, and finalizing the severance agreement.  We do this all with a view to minimizing both cost and stress.

Our clients have a lot of on their plates, and the world of human resources and employment law is constantly changing. To help our clients keep abreast of their obligations as well as best practices, we also provide relevant, ongoing training that is geared to the specific needs of their workplace.

Not sure where to start? We can conduct a full employment audit to assess your needs – we offer this service for a flat-fee so that you know what you’re signing up for before you begin.

The laws affecting the workplace are ever changing.  There are a broad range of employment issues that come up.  Many employers are reactive, simply responding to issues as they arise. Often, many problems can be avoided or better managed with good contracts, policies, procedures and practices.

For our employer clients, we offer a flat fee audit of existing employment practices.  As part of the audit process, we review all existing employment contracts and human resources policies and procedures. We then offer detailed recommendations regarding steps to be taken to achieve compliance with legal requirements and best practices.

Many employees experience temporary or permanent disabilities that affect their ability to do their jobs. At times, a disability may make it difficult for the employee to continue to work, resulting in long periods of absence. During this time, and upon the employee’s return to work, there is often a lot of confusion about how best to manage the situation. 

The bottom line is that individuals with disabilities are entitled to be included in the workforce, and we work closely with employers and employees to ensure that everyone understands their obligations and entitlements. We assist with the investigation of accommodation options and seeking creative solutions to accomodation needs. We also help employees who have a contractual entitlement to short-term or long-term disability benefits, and we frequently act on behalf of employees who have been denied disability benefits.

We assist employees with significant unpaid wage claims in a variety of industries in which wage theft is prevalent, including restaurant and domestic workers.  Employees who have wage theft claims typically have not been paid for the hours they worked, have not been paid minimum wage or overtime pay, or have been wrongly treated as independent contractors, rather than as employees. We have handled cases securing basic minimum wage entitlements for victims of human smuggling, and migrant domestic workers.

Sometimes it’s just not possible to resolve matters without a formal dispute resolution process.  At Karimjee Greene LLP, we don’t shy away from litigation. In fact, we enjoy fighting for the right result, and we have a strong record of protecting and advancing our clients' rights and interests through skilled and effective advocacy before courts and administrative tribunals.  Our experience includes wrongful and constructive dismissal, defamation, human rights, wrongful competition and breach of confidentiality, long term disability and workers' rights matters.

Human rights law protects people from discrimination and harassment based on a number of grounds including race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender, age, marital status, family status and disability.

Individuals are entitled to equal treatment at work, in their housing, in their unions and while accessing services. In 2008, the human rights process changed significantly such that people now have direct access to the Ontario Human Rights Tribunal. This has led to a significant increase in the number of complaints filed, and while legal representation is not required at the Tribunal, many realize too late that they are significantly disadvantaged when they appear at the Tribunal unrepresented.

At Karimjee Greene LLP, we provide a range of services—from helping employees and employers to proactively manage human rights issues in the workplace, to providing behind-the-scenes advice or representation before the Tribunal—we help people navigate this complex but important area of law.

The lawyers at Karimjee Greene LLP have a long history of serving non-profits, charities and co-operatives. We enjoy supporting the work that they do, and we are proud to have a large client base in this sector, including a number of social housing providers, arts and cultural organizations and social services agencies. 

With a clear understanding of how non-profits work, we provide expert advice and representation in the areas of employment law, human rights and dispute resolution. The legal needs of this client base are diverse, and we don’t profess to be a full-service firm. But our clients appreciate receiving focused, dependable and expert advice from a boutique firm that offers reduced rates to non-profits, charities and co-ops.

What our Non-profit clients say about us

In addition to his practice as an employment lawyer, Kumail acts as a third party mediator and investigator. He is regularly retained by employment law lawyers to mediate a wide range of employment related disputes.  Kumail’s experience as an independent mediator broadens his ability to see every legal issue from multiple perspectives. Information about mediation services and available dates can be found at http://www.mediatordates.com/mediators.php?m=586.