Human Rights Law Ontario

WHAT IS THE DIFFERENCE BETWEEN THE HUMAN RIGHTS TRIBUNAL VERSUS COURT?

Many people confuse the Ontario Human Rights Tribunal with court.

THE HUMAN RIGHTS TRIBUNAL IS A TRIBUNAL

This means its not court its an administrative body. Think of it like when you go to obtain your drivers license. The Ministry of Transportation tests your skills determines whether it compares to their standards and then if satisfied will render a decision. In this case a driver’s license.

IS THERE A JUDGE?

For the actual hearing there will be an adjudicator this is someone who will have the decision making powers similar to a judge. Ultimately, they will decide whether your case has merits or not.

WHY THE HUMAN TRIBUNAL VERSUS COURT?

Being an administrative body the Human Rights Tribunal’s establishment is based on a cost effective approach with a means to accessing justice in a timely manner. The process is less formal than a court. It is also meant to be less intimidating.

HOW DO I KNOW WHETHER I HAVE A HUMAN RIGHTS CASE?

The process in determining whether you have a human rights discrimination case versus an actual court case is something that lawyers assess. It’s important to ensure you consult with a lawyer when considering your legal options. The selection of the wrong forum could seriously jeopardize your claim.

I NEED A HUMAN RIGHTS LAWYER

If you need to speak with a lawyer call my office today.

I QUIT IS NOT ENOUGH

I QUIT IS NOT ENOUGH

There is no legal obligation on a departing employee to provide notice of their resignation. However, as a rule of thumb its practical and courteous to provide some type of notice. Particularly, if you are planning on using your former employer as a reference or on your resume.

RESIGNATION SHOULD BE CLEAR AND UNEQUIVOCAL

The resignation should be clear and unequivocal. Courts have stated that resignations given in the heat of the moment may not be satisfactory.

Also, simply saying the words I quit may not be upheld as a valid resignation.

Employers should be mindful of the following factors[1] that courts have considered in a wrongful resignation case:

  • The circumstances surrounding it
  • Was it expressed unambiguously
  • Was the resignation put into writing
  • Was it accepted verbally or in writing
  • Did the employee try to retract the resignation
  • Are there special circumstances that suggest employee under emotional duress
  • Has the employer already acted in reliance on the resignation

EXIT INTERVIEWS

Employers should consider exit interviews as a formality for when an employee resigns. This will strengthen an employers legal position in the event the employee decides to challenge their resignation.

 

[1] This information was reproduced from the Employment Law text book by Filsinger Chapter 12

HUMAN RIGHTS TRIBUNAL OF ONTARIO: WHAT TO KNOW

 

HUMAN RIGHTS TRIBUNAL OF ONTARIO: WHAT TO KNOW

The Ontario Human Rights Tribunal is established by the Ontario Human Rights Code.

HOW DOES THE ONTARIO HUMAN RIGHTS CODE OPERATE?

The Ontario Human Rights Code prohibits discrimination based on the grounds below.

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Receipt of public assistance (in housing only)
  • Record of offences (in employment only)
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation.

WHAT AREAS ARE AFFECTED BY THE HUMAN RIGHTS CODE?

The grounds above apply in any of the following areas:

  • Accommodation (housing)
  • Contracts
  • Employment
  • Goods, services and facilities
  • Membership in unions, trade or professional associations.

 

EMPLOYMENT LAW AND HUMAN RIGHTS

Common applications at the Human Rights Tribunal will be related to employment issues.

SHOULD I SUE OR START A CLAIM AT THE HUMAN RIGHTS TRIBUNAL?

Whether you should sue in court or start an application with the tribunal depends on a number of factors. Its important to consult with a employment lawyer.

If you have been discriminated at your place of employment with respect to any of the grounds mentioned above. You may consider the Ontario Human Rights Tribunal.

HOW MUCH TIME DO I HAVE TO FILE A HUMAN RIGHTS COMPLAINT?

You have one year from the date of the incident to start an application for discrimination at the Human Rights Tribunal. If you miss the one year deadline you may still apply. If you miss the one year deadline you may still attempt to file. However, you must satisfy the Tribunal that the delay in filing was, “incurred in good faith and no substantial prejudice will result to any person affected by the delay.” This does not mean that all applications will simply be accepted after the one year mark. It also doesn’t mean that just any excuse is satisfactory.

HOW DO I FIND AN EMPLOYMENT LAWYER?

If you feel you have a human rights complaint contact an Employment Lawyer.  I provide legal services in Burlington and Oakville. Call me at 41650-4901

 

WHY YOU SHOULD KEEP EMPLOYMENT RECORDS

WHY YOU SHOULD KEEP EMPLOYMENT RECORDS

As an employer you should always keep up to date employment records for all your employees. In the event of a dispute such as a wrongful dismissal claim or a human rights claim. These documents can mean the difference between winning and losing.

In addition, the Employment Standards Act., in Ontario requires that employers keep records. In the event of a dispute the Ministry of Labour may request employment records. Failure to do so can have negative consequences. During employment law litigation records related to the employee will be sought. Particularly in a wrongful dismissal case.

Whether the employee is temporary, part-time or even just a family friend helping out. It’s crucial that you keep an employment record.

Also, to be clear this is different from the Record of Employment at the conclusion of a working relationship.

BEST TIPS FOR EMPLOYERS FOR RECORDS

Decide whether your records will be hard copies or digital copies. The list below incorporates legal requirements from the Employment Standards Act., and also best practice requirements

Each individual employee file should contain the following:

  • Signed copy of the employment contract;
  • Contact for references;
  • Summary of any notes from when the reference was contacted including the date and time;
  • Completed copy of the job application;
  • The employee’s date of birth, if the employee is a student and under 18 years of age;
  • The date on which the employee began his or her employment;
  • The dates and times that the employee worked;
  • Any hours that would be considered in excess and any variation in pay as a result;
  • The number of hours worked in each week;
  • Any documents pertaining to warnings and discipline;
  • Incident reports of any situation in which the employee was involved or related to;
  • Days missed by employee and the reason;
  • Doctors notes;
  • Sick days;
  • Vacation days including vacation pay;
  • Any complaints;
  • Any documentation of any concerns from the employee;
  • An emergency contact;
  • Signed corporate policies;
  • Signed privacy and confidentiality policies;
  • Accreditation documents;
  • Occupational Health and Safety documentation and training acknowledgement;
  • Training manual;
  • Any documentation with respect to termination; and
  • Performance evaluations

In addition to the above the employer is legally obligated to provide a statement of wages to the employee regularly. While the list above is simply a rule of thumb, each employer based on their specific industry or profession and needs should consider additional factors. For example, an accounting firm should retain any industry specific documentation such as diplomas or degrees. Those in the manufacturing and trade sector may retain copies of any training.

Larger companies can satisfy the legal requirements easier versus smaller business. Take for example, a small contracting company who employees on a seasonal basis a few employees a year. They may not have the time to satisfy the requirements above.

EMPLOYMENT LAW LITIGATION

In any employment related litigation case a prudent employment lawyer at the outset will ask for the documents above from their client. Having at least some of the documents above places the employer in a substantially stronger legal position. Particularly, if they had terminated the employee.

Take the following example: An employer dismisses a long-term employee who has a history of insubordination. However, the employer failed to document the insubordination. Failed to have any meetings with the employee. Later on in the course of a wrongful dismissal case the employer will have to prove why they fired the employee. If they didn’t keep up to date records of any discipline or even time sheets. They may be out of luck.

HAVE YOU BEEN WRONGFULLY TERMINATED?

 Call our law office today to speak with one of our Burlington Employment Lawyers. We provide employment law services in Halton and Burlington.

PH: 416-505-4901

901 Guelph Line, Burlington, ON

Wrongful termination, fired and depression.

I WAS FIRED.

Whether you were on the job for a few days, months or years losing a job is always traumatic and emotionally difficult to deal with.

As an employment lawyer I hear from people everyday from a variety of socio-economic spheres. Whether it’s a general labourer position or a senior management position. The overall impact is the same. I find many during the employment law consultation will mention that this was a complete shock.

Wrongfully dismissed employees feel a great sense of loss, emotional challenges and as if they are failure. More importantly, they are scared. Scared for their future. How will they make ends meet? How long will it take to find a new job? What if they never find a job!

OUR JOB IS OUR IDENTITY

Terminated employees are disappointed with their employer but also disappointed in themselves. Our job is our identity. It won’t come as a shocker that a Barista will not be living in a penthouse suite and driving a Ferrari. Unless, of course they are independently wealthy. Therefore, our job defines us and tells the world who we are. When we meet new people whether it’s a potential partner, friend, networking prospect we often inquire as to what they do for a living.

On immediately doing so, we learn so much about them. We paint a picture in our mind about them on discovering their occupation. Furthermore, if our job is one we are proud of we may tend to wear it as a badge of honor. We may like telling people about what we do for a living. In the alternative, if we don’t like what we do, we may tend to shy away from the question.

HOW TO COPE WITH BEING FIRED.

The initial shock of being wrongfully terminated from a position can take a few days, weeks or even months. I have spoken to some people who were terminated from their position years ago and it still haunts them.

There is a societal element to being fired, its embarrassing and it immediately makes us vulnerable. Suddenly, we are in the position of a beggar looking for work, pursuing pointless leads, contacting friends and family. Profusely, thanking anyone who is willing to take the time to help us. Grateful for that aunt, uncle or cousin who was willing to put forward our resume to a particular company. Appreciative that our neighbour may decide to have a chat with their manager and put in a good word.

Thus, is the unfortunate reality of being terminated. Don’t fret and don’t give up hope. Consider the tried and tested strategies:

  • Don’t be shy reach out for help to anyone;
  • Create a network of contacts;
  • Let people know you are open to any ideas;
  • Attend for personal counselling if possible;
  • Remain physically active;
  • Don’t sleep in;
  • Don’t stay up all night;
  • Don’t turn to intoxicants;
  • Consider volunteering; and
  • Participate in cost effective hobbies.

Of course be grateful to those who are willing to help. You will be surprised how effective networking can be.

Many will often mention that they tried all the solutions above and still didn’t obtain any employment. It’s true, that could be the case. The only option you have is to continue trying. What’s your alternative?

HAVE YOU BEEN WRONGFULLY TERMINATED?

 Call our law office today to speak with one of our Burlington Employment Lawyers. We provide employment law services in Halton and Burlington.

PH: 416-505-4901

901 Guelph Line, Burlington, ON

HOW SHOULD I DISCIPLINE MY EMPLOYEE?

HOW SHOULD I DISCIPLINE MY EMPLOYEE?

Employers must be very proactive and careful in disciplining employees. Common areas for discipline include, work performance, tardiness, absences and insubordination.

In Ontario and Canada the concept of progressive discipline should be applied.

WHAT IS PROGRESSIVE DISCIPLINE?

If an employer is fed up and upset with an employee who is consistently late and decides to summarily fire them the employee may have recourse against the employer. The reason being if the employer failed to document and discipline the employee.

Employers often argue that this places an undue burden on them. However, an employer must have complied with basic due diligence such as documenting the behaviour.

MY BOSS FIRED ME AND NEVER INFORMED ME OF MY CONDUCT.

Often a fired employee will say they were called into the office and fired. The reason may be coming in late or work performance. In these situations an employee may argue they were never informed and that the employer never discussed these issues with them.

It is for this reason again that an employee is entitled to not only be cautioned about any concerning behaviour but that this behaviour be:

  • Discussed with the employee;
  • Documented;
  • Provide an opportunity for an explanation from the employee;
  • Provide for an opportunity to correct the problem; and
  • Have a follow up.

The steps above are not exhaustive. However, an employer if faced with a wrongful dismissal suit from their former employee who has not applied progressive discipline may have to justify their termination.

EMPLOYMENT LAWYER NEAR ME IN BURLINGTON? 

Are you looking for a family law lawyer in Burlington or Oakville? Call my office.

My address is 901 Guelph Line, Burlington.
You can also call or text at 416-505-4901

I DON’T HAVE AN EMPLOYMENT CONTRACT

EMPLOYMENT CONTRACT

Without a doubt the Employment Contract is one of the most important documents in the employer and employee relationship.

I DON’T HAVE AN EMPLOYMENT CONTRACT

If you are an employee and you don’t have an employment contract this can pose serious problems. Not only can issues arise with day to day events such as your duties and responsibilities. There is no documentation for when you started and ended. It’s important that your employer provide you with an employment contract.

I DON’T USE EMPLOYMENT CONTRACTS FOR MY EMPLOYEES

If you are an employer and do not use an employment contract you are placing yourself and your business at serious risk. A properly drafted employment contract can avoid many common misunderstandings. It also provides for documentation.

Finally, in the event of a legal dispute courts will frown upon an employer who does not have an employment contract.

I USE AN EMPLOYMENT CONTRACT BUT ITS NOT UP TO DATE

Some employers will presume they have complied with their due diligence by simply having an employment contract. This is not enough. Each contract must be tailored for the specific employee. You should also ensure you as the employer are also complying with your own contract. For example, if the employment contract suggests annual reviews but you have failed to conduct them this can be a problem.

You should review your contracts yearly with an employment lawyer and also with your employees.

EMPLOYMENT LAWYER NEAR ME IN BURLINGTON? 

Are you looking for a family law lawyer in Burlington or Oakville? Call my office.

My address is 901 Guelph Line, Burlington.
You can also call or text at 416-505-4901

CAN I BE FIRED FOR MY SOCIAL MEDIA PROFILE?

CAN I BE FIRED FOR MY SOCIAL MEDIA PROFILE?

The short answer is. Maybe. If your postings are deemed offensive.

The proliferation of social media and its users only continues to grow. The concept of people flocking to social media to disseminate their views, opinions and criticize is nothing new. This was part and parcel in the early days of the internet as well. However, the permeation of one’s blog was limited. That’s where social media changed everything. Where one’s message can be spread to many and rapidly.

If an employees on-line behaviour is viewed as inappropriate, offensive and there is the potential for harm to the reputation of the business the employer may take action.

PEOPLE FIRED FOR SOCIAL MEDIA

In 2015 Workopolis wrote on the issue citing a number situations where people were fired for their on-line posts.

In 2015 a Toronto teacher was fired for his anti-Muslim social media posts. In 2015 a Liberal candidate bowed out of an election based on her offensive Tweets. In 2017 an airline stewardess was fired for her posts about inappropriate passenger behavior. The stewardess had over a million users subscribed to social media accounts. In 2018 a teacher in Florida was fired for hosting a white national podcast.  In January 2018 a Canadian Rail Conductor was fired for posting “racy” photos of herself on social.  Journalists have also been disciplined and or fired based on their social media profile.

The list is endless and the phenomenon is growing.

 IS IT NOT FREE SPEECH?

Sure, it can likely be classified as free speech. Is this a court battle anyone wants to engage in? Not likely. The private life of an employee is certainly their time. However, without a doubt we also have to recognize that as an employee we are indirectly representatives of our employer. Our conduct may be measured and or judged. If an employer feels that your exercising of free speech is harmful they may take action.

WHAT CAN AN EMPLOYER DO ABOUT SOCIAL MEDIA?

An employer should ensure their employment contract specifically identifies social media and usage. Moreover, that specific clauses warn the employee of their obligations when using social media. Specifically:

  • Warning employees about the dangers of social media;
  • Notify them that they may be disciplined and or terminated for inappropriate social media usage;
  • They be specifically forbidden from discussing company foibles, gossip and confidential information;
  • That any interaction or posting of social media content that is deemed to harm the business can be disciplinary.

Separate and apart from the employment contract a prudent employer may want to have a document that only address the issue of social media. Today, many employers are opting for corporate polices . These policies today incorporate internet usage at work and material that is access by employees. As a result, it may be a good idea to also include social media clauses.

On discovery the issue employers should take immediate action to address the issue.

WHAT IS CONSIDERED OFFENSIVE SOCIAL MEDIA CONTENT?

It’s tricky to determine what is considered to be an offensive or inappropriate social media posting? Airing employer grievances at the water cooler or local pub with colleagues, family and friends is a favorite North American pastime. However, all this changed with the emergence of social media. One must be prudent and careful when posting material on-line. Granted this is difficult since the topic of sound judgement can often be considered subjective.

In any event, the onus should be on employers to ensure they have properly instructed their employees on the usage of social media.

 

EMPLOYMENT LAWYER NEAR ME IN BURLINGTON? 

Are you looking for an Employment lawyer in Burlington or Oakville? Call my office.

My address is 901 Guelph Line, Burlington.
You can also call or text at 416-505-4901

Working With A Lawyer

In my most recent post I blogged about hiring a lawyer. In this post I would like to talk about working with a lawyer.

People are often confused, frustrated and sometimes even angry at the rates that lawyers charge. However, lawyers are like any other service provider.

Ever get an estimate on a home renovation project? Only to find out later that the estimate is different because of alterations, unforeseen events or new circumstances? Ever take your car into the garage only to find out the price quoted was different?

This is often the case with lawyers as well.

Sure, there are many service providers that overcharge or are not upfront about their costs. Then there are others that are not.

Some matters are simple and straight forward. For example a real estate house closing. Whereas, others matters can be significantly more complicated such as civil litigation lawsuits, or family law disputes.

When you decide to work with a lawyer ensure you are aware of his or her hourly rate. Determine whether this is a matter that will be billed on an hourly rate or it will be a flat rate.

Find out how much of the quote is for legal fees and how much is for disbursements.

Disbursements are expenses that lawyers have to pay on your behalf. These are often factored in the quote provided.

Finally, don`t forget tax is payable on legal fees.

Ensure when the lawyer bills you that you are provided with an invoice. Typically, it`s good practice for the lawyer to provide a breakdown of the legal services. This is not often the case when the matter is on contingency or on a flat fee.

Rehan Khalil is a lawyer in Mississauga.