1. EMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESS
SAMFIRU TUMARKIN LLP
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
Barristers & Solicitors
EMPLOYMENT LAW ISSUES DURING THE JOB SEARCH PROCESS
Presented by: Lior Samfiru and Peter Cicak
Prepared for: Mississauga Employment Center T: F:

2. Employment Law Considerations
Topics:
Employment contracts: what you need to know
Working as a consultant/independent contractor
Termination of employment: your rights
Steps in a wrongful dismissal lawsuit
Questions.

3. Employment Contracts: What You Need to Know
Consider this:
Written contracts almost always benefit the employer
Contracts are drafted by lawyers
You sign it, you have to live with it
Will govern your employment relationship and even conduct after employment comes to an end

4. Employment Contracts: What You Need to Know
Important Contractual Clauses
Termination: The BIG One
Consider this Clause:
“If your employment is terminated without cause, the Company shall give you notice or pay as required by the Employment Standards Act of Ontario. This shall constitute your full termination entitlements”.

5. Employment Contracts: What you Need to Know
Termination Clauses:
Employer will seek to minimize termination exposure
Employment Standards Act only prescribes minimums
Contract may have fixed notice period --- not always good.
The longer you work, the more important it becomes
Understand what you will get at termination (pay, bonus, benefits, etc.)

6. Employment Contracts: What You Need to Know
2. Restrictive Covenants
Non-competition provisions: duration, location, scope
Non-Solicitation
Confidentiality obligations
Can significantly impact ability to find other employment
3. Other Clauses to Note:
Are changes to duties allowed?
Are changes to pay allowed?
Are other documents mentioned (get a copy!)
Does contract apply when position changes? 

7. Employment Contracts: What You Need to Know
Negotiating Terms
Negotiate before you start working.
Only fight the battles that matter
Don't ask and you shall not receive
Agree in writing to re-negotiate once specific conditions met

8. Independent Contractor/ Consulting Arrangements
Employee / Consultant: What's in a name?
The employment contract places a certain label on the relationship
Generally, the question is:
Are you an employee, or are you self-employed?
No one factor is determinative of your relationship, including the label that the parties to the contract choose to place upon it
Contract here beneficial to both parties

9. Independent Contractor/ Consulting Arrangements
Factors to Consider:
All relevant factors will be considered when defining the relationship:
Control over how your work is done
Ability to freely negotiate your pay and set hours for work
You own your own tools, materials; and
You take on the full profit or loss from your business
Are you economically dependent on one company, or are your activities an essential component of the business --> EMPLOYEE

10. Independent Contractor/ Consulting Arrangements
What Does Not Work:
Changing the title only
Can only work for one employer? No good.
Title, but nothing else
You perform the same job as other EMPLOYEES

11. Independent Contractor/ Consulting Arrangements
Why be "Independent Contractor":
Taxation
Ability to claim "reasonable business expenses", as opposed to being confined by statutory expense deductions;
Mischaracterization could result in a reassessment and might result in the imposition of fines
Payroll deductions
No statutory deductions taken from pay (EI, CPP and income tax), however
Independent contractors:
Cannot collect EI benefits when unemployed;
Would be responsible for making their own CPP contributions

12. Independent Contractor/ Consulting Arrangements
Considerations:
No minimum standards protection
Independent contractors are deprived of minimum standards legislation
Not subject to minimum wage, hours of work, vacation and other protections
Limited notice of termination rights

13. Termination of Employment
Manners of Termination
Termination for cause - no notice
Termination without cause - notice!

14. Termination of Employment
Termination with cause
Employer can terminate employment for cause, where employee’s conduct is inconsistent with the continuation of the employment relationship.
Can only happen when the employee is guilty of repeated and very serious misconduct.
Employer has an obligation to take other lesser forms of discipline before resorting to termination.
One incident of misconduct is almost never enough.
If employer establishes cause, no requirement to pay severance.
In reality, very difficult to establish cause, and employer may be liable for damages for bad faith.

15. Termination of Employment
Termination Without Cause
Can happen at any time, for any reason
Performance is irrelevant
Seniority is irrelevant
No termination as a result of a discriminatory ground (for example, no termination without cause because employee was absent due to an illness)

16. Termination of Employment
Termination Without Cause (contd.)
Employer must provide reasonable notice or pay in lieu thereof
Starting point: employment contract
No contract: probably good news for employee
Must determine what reasonable notice is for each employee

17. Termination of Employment
Termination Without Cause (contd.)
Notice is based on employee's age, length of employment, nature of position
Was employee induced to leave secure employment? Notice goes up.
Employer may decide to give working notice
If no working notice, must be put in the same financial position as if given working notice.
Payment can be made as lump sum or as salary continuation.
Package must include everything: salary, bonus, commissions, benefits, stock options, vacation pay. 
Important: employee has duty to mitigate

18. Termination of Employment
Termination Without Cause (contd.)
Employer imposed time limits: take your time!
Always take package home and consider speaking to a lawyer
Employer will want a release
Consider if employer must pay lump sum (if payroll > $2.5 million) 

19. Termination of Employment
Constructive Dismissal
Significant, unilateral, change to important contractual term
Gives rise to termination without cause
Employment contract is important
Resign...or else...

20. WRONGFUL DISMISSAL Steps in Wrongful Dismissal Claim:
Demand Letter: resolves vast majority of disputes
Statement of Claim served by employee
Employer has 30 days to serve Statement of Defence
Mandatory Mediation (Toronto only): resolves close to 95% of employment lawsuits

21. WRONGFUL DISMISSAL Continued:
5. Examinations for Discovery (only for lawsuits exceeding $50,000)
6. Pre-Trial Conference
7. Trial
Timelines:
To mediation: 3 months
To trial: 8 to 12 months

22. Offices in Toronto and Mississauga
SAMFIRU TUMARKIN LLP
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
Barristers & Solicitors
For further information, please contact:
Lior Samfiru
Tel: (416)
Fax: (416)
Offices in Toronto and Mississauga
Presented by: Lior Samfiru and Peter Cicak
Prepared for: Mississauga Employment Center
Trusted.
Dedicated.
Experienced.