Prior to the market crash in 2008 this was common, but after the fall of 2008, the number of these requests fell dramatically and has remained low.

The recent increase in the number of new contract reviews suggests that the market may be recovering and that hiring is starting to return. Unfortunately, we are also seeing a number of terminations, which remained high throughout February. This suggests that the marketplace may still be in transition.

While we start to move from recession to recovery, employers and employees should remain mindful that a good employment contract is often the best way to avoid disputes during the relationship and/or when it ends.

Certainly when someone is hired, we don’t want to talk about what would happen if things don’t work out. However, that approach only postpones what could be a litigious ending. Employers and employees should agree on what occurs on termination before that event occurs. This includes not only outlining what notice is owed to the employee if he/she is terminated, but also how much notice prior to resignation the employer needs should the employee choose to depart.

James Heeney

As lawyers, we are tasked with guiding our clients to ensure compliance with legislative guidelines. Given that there is limited information in the legislation, employers must ensure that their workplace is properly evaluated and policies are properly crafted to address the needs and risks of the specific workplace. For example, it is becoming more and more apparent how company-specific risk assessments need to be. We must look at the physical features, social environments and policies and procedures which exist in each workplace to determine the best approach to conducting a risk assessment. In other words, there isn’t a set way to conduct a risk assessment.

The date that the amendments come into force is creeping up (June 15, 2010). If you haven’t yet begun to look at ensuring compliance in your workplace, the time to begin is now.

Hena Singh

Some of the most significant issues which arise with the mobile workforce involve:
(a) confirming who the actual employer is, which can be unclear when an employee is moving between related companies;
(b) determining which law applies to the employment, depending on where the employee comes from and ultimately works; and
(c) establishing the specific law which will apply in the event of a dispute.

Some of these issues are less significant when employees move between offices in the same city, but you can imagine the complexity when they move between provinces or even between countries.

Certainty can be injected into the employment relationship by confirming the above in a written employment contract. The contract can also be very useful for preventing other disputes which often occur in the context of an employment transfer. The following are just some of the issues which arise:

• Does the employee have any obligation to accept a transfer?
• What is the employer’s obligation, if any, to assist with the necessary immigration documents?
• What expenses will the employer reimburse (associated with a move), and will these same expenses be reimbursed after the assignment ends?
• If the assignment ends, does the employee have a right to return to his/her former job and/or home base?
• Will any assistance be provided to the employee to assist with the tax implications of the new jurisdiction?
• Are any special terms of employment, like incentive plans, stock option agreements, restrictive covenants, enforceable in the employee’s new jurisdiction of employment?

As you can imagine, the legal issues which can arise in the context of an employment transfer can be very complex and difficult to resolve in the absence of a written agreement. As the economy begins to turn around, we encourage those employers looking to begin transferring employees to be mindful of the above-noted issues and to consider entering into written employment agreements before the transfer occurs.

Christine Thomlinson

The program provides a useful template for other organizations that are contemplating how to stimulate creativity and foster a pool of talented leaders. The DiverseCity Fellows program demonstrates that it is possible to pursue diversity and excellence in performance at the same time. The ultimate aim of any such program should be not only to hire individuals from diverse backgrounds, but more importantly to ensure that their skills and unique perspectives are effectively utilized. Through such an approach, employers can better realize the substantial returns that come with an investment in diversity.

Sharaf Sultan

What jumped out at me was how efficiently the plaintiff and his counsel made use of the procedural tools available to get a good result with minimal expense. Counsel for the defendant also deserves kudos as he agreed with the suggestion to deal with the case in this fashion.

The plaintiff was a forklift mechanic who earned $58,000 a year. He had worked for the employer for six years. No cause was alleged. The issue to be determined was the length of notice to which he was entitled, as well as whether the termination violated the Human Rights Code of Ontario.

Rather than wade through examinations for discovery and a trial, which would have made little economic sense since the plaintiff’s case was worth less than $30,000, plaintiff’s counsel brought a motion for partial summary judgment under Rule 76.07 of the Rules of Civil Procedure. Simply put, this rule allows a judge to render a decision when he or she determines there is enough information to do so, and where the judge determines that there is no need for cross examination of the parties. It appears that the evidence used was the plaintiff’s own affidavit that set out his job search. This was enough for the judge to conclude that the plaintiff was entitled to five-and-a-half months’ notice. The human rights issue, which could not be addressed using this process, was left undetermined. This will mean that it can be tried on its own at a later date, or settled between the parties. I am told by counsel that the matter took all of two hours to be heard in court.

If you are an employment lawyer reading this, ask yourself how many of the wrongful dismissal files sitting on your desk could be handled this way. If you are an employer, ask yourself the same question. If you are an employee considering engaging the services of counsel, make sure you ask if your dispute can be determined as simply and as efficiently as this. I think this case is a procedural sign of things to come.

Janice Rubin

1) Employees are still entitled to reasonable notice of termination and the main elements of that calculation remain the same;

2) Termination with cause is still the “capital punishment of employment law”, making termination for cause very difficult for employers to rely on;

3) Termination provisions (especially provisions only entitling employees to Employment Standards Act, 2000 minimums or little more) need to be carefully and expertly crafted to ensure that the employer can rely on them when terminating employees;

4) Most employment law cases are about the sufficiency of notice. The “extras”, such as Wallace damages, mental distress, punitive damages, etc., are generally only awarded in the most extreme cases;

5) An employer’s breach of legislation such as the Human Rights Code, the Employment Standards Act, 2000, the Environmental Protection Act, the Pay Equity Act, the Occupational Health and Safety Act and/or the Workplace Safety and Insurance Act, followed by a termination of an employee can often lead to serious and unforeseen consequences, including an award of the “extras” described above.

As the French saying goes, plus ça change, plus c’est la même chose (the more things change, the more they stay the same).

Hena Singh

Here are a few things to look for when structuring these arrangements:

1. Put it in writing. Even these arrangements can end in tears if there is a disagreement on the basic terms. Your best bet is to set out the agreement in writing. Things that should be included are: what the project is; what the term is; where the person will work; and what the compensation will be. The other very important thing to include is what happens if there is a termination.

2. The duck test. Just because you call your new person an independent contractor, doesn’t necessarily mean that they aren’t an employee at law. If it looks like a duck, and walks like a duck, it may just be a duck, or in this case an employee to whom you may have to pay statutory or common law notice. An independent contractor is just that – independent. If you fully integrate that person into your operation, and if you exercise control over how they do their work, there is a chance that they will be an employee at law. Look to set up arrangements that look like a bargain between two equals, with a substantial amount of control and flexibility resting with the contractor.

3. Leaving it too long. The longer the relationship lasts, the greater the possibility that someone – and that could mean Revenue Canada – will conclude that it is really an employment relationship. In that case, the employer will be on the hook to pay income tax withholdings and CPP and EI premiums for the employee, often calculated from the beginning of the relationship. This can be costly, and may be difficult to collect from the employee.

Janice Rubin

These studies serve to confirm what I long suspected: the online world is becoming meaningfully integrated into the so-called “real” world. Specifically, the internet, including social networking sites, is rapidly becoming an investigative tool upon which employers form opinions of prospective employees. Although the studies I reviewed focused on prospective employees, the findings can be applied equally to employers. Specifically, information which employers post online can significantly inform the impression formed by a variety of individuals and groups, including existing clients, prospective clients, as well as prospective employees. Both employees and employers would therefore be wise to ensure that online content which is available to others is both accurate and consistent with the image which they wish to portray to the public.

A good approach is for individuals and organizations to ask themselves candidly whether they are comfortable with others viewing all content about them which is available online. If not, the content should be modified as necessary. This process should also ensure that information which is particularly sensitive is removed from the public sphere. Such a reflective approach can help to ensure that online information is both positive and consistent with the goals of both employees and employers. Regardless of the specific content the guiding principle should remain the same: what is online is also on mind!

Sharaf Sultan

Hena Singh

As employment lawyers, if we could suggest our top 5 resolutions for employers and employees for 2010, they would be:

1. Prepare written employment contracts for every employment relationship.
The good news is that we’re beginning to see people being hired again. As lawyers, we will always tell you that the way to enhance certainty in the relationship is to ensure that everything that was discussed at the beginning finds its way onto paper.

2. When writing those employment contracts, think about post-employment restrictions.
Both employers and employees should think about whether there is a need for restrictions on what an employee does (competes/solicits) after the employment relationship ends. Now is the time to set this out – not later.

3. Continue to exercise care in the termination process.
For the most part, companies seemed mindful of engaging in sensitive terminations throughout the 2009 recession. We encourage the continuation of this practice even if the number of terminations drops in 2010.

4. Pay particular attention to issues of harassment and bullying in the workplace.
Pending legislative changes in Ontario mean that employers need to be addressing bullying and violence in the workplace. Residual stress in the workplace caused by the fallout of the recession may also mean a rise in this type of behaviour.

5. Be aware of changes to the Ontario litigation system.
Changes which come into effect on January 1, 2010 are hoped to bring better access to justice and a quicker resolution of employment matters for all.

From all of us here at RT LLP, we wish everyone a very prosperous and happy new year!

Christine M. Thomlinson