EMPLOYMENT LAWYER

Many employees do not have a written contract. This does not mean that you have no legal rights and entitlements. Even without having a formal written contract, there are still a number of terms that the parties have agreed to, either through their conduct or by virtue of informal correspondence. For instance, in most employment relationships, there is certainty regarding at least a few fundamental components of the employment relationship. Usually, pay or pay structure is certain. Typically, the hours of work are also agreed upon by the employer and employee.

However, the law also protects employers and employees where there is no written contract in place. For instance, the Employment Standards Act provides for minimum vacation leave, personal days and further, it mandates the length of notice of termination to which an employee is entitled to prior to termination. Similarly, the Common Law also provides guidance to employees and employers regarding their rights, even where there is no mention in any contract.

Any employer can terminate an employee at any time, provided they do so in accordance with the law. An employee must not be dismissed on the basis of any ground contrary to the Human Rights Code. Employees must also be provided with notice of termination in accordance with either the Employment Standards Act (ESA) or the Common Law. Essentially, the ESA requires that an employee be provided with one week’s notice of termination for every year employed. This is capped at 8 weeks. Therefore, if an employee has worked for “X” Corporation for 8 years then s/he is entitled to 8 weeks’ notice of termination.

An employer may however, choose to terminate the employment by giving the employee notice of termination, pay in lieu thereof which represents payment for the required notice period or a combination of both. This is commonly referred to as “working notice”. In certain situations for example, where an employee has worked for an employer for more than 5 years and the company has an annual payroll of $2.5 million dollars, the employee may also be entitled to termination pay under the ESA.

It is important to note that where there is no limiting language in an employee’s contract, an employee may be entitled to 1 month’s notice of termination for every year worked for the employer rather than just the 1 week’s notice per year required by the ESA.

When an employer, without the consent of the employee, changes a fundamental term of his/her employment, this is referred to as a constructive dismissal. The most obvious example of this occurs when an employer changes the employee’s pay or pay structure. However, a constructive dismissal can occur whenever an employer changes a material term of the employee’s contract. For instance, a constructive dismissal can also occur where an employer has unilaterally assigned the employee to work at a new office or worksite which requires significant travel. Many changes to the employment relationship may be considered material or fundamental enough to give rise to constructive dismissal based on the facts.

In order to claim damages for constructive dismissal, the employee must resign from his/her employment. In doing so s/he is asserting that the changes made by the employer are changes which indicate that the employer is no longer willing to be bound by the employment agreement and has repudiated same. It is important to note, however, that employee’s asserting constructive dismissal should do so quickly. The longer an employee remains in the employer’s employment, under the new regime, the more likely that it will be held that the employee accepted the new terms of employment or condoned the change. If you are unsure of whether you have a legitimate claim, it is always best to seek legal advice before making any decisions.

As discussed earlier, an employer may terminate an employee at any time, provided they do so in accordance with the law. Where an employee is terminated “without cause” they are entitled to notice in accordance with the provisions of the ESA or the common law. An employee may, however, be terminated immediately, without notice or termination pay where the employer has just cause to do so.

The ESA provides that an employee is not entitled to notice of termination or termination pay where s/he is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. Many acts of omission may thus fall under this definition and only a review of the facts and the conduct of the employee will reveal whether his/her actions indeed amount to wilful misconduct, disobedience or wilful neglect of duty. It is, however, important to note that employers cannot condone any such activity and then later seek to dismiss the employee for such actions. It is also important to note that where the employee’s actions are not blatant, in order to claim “just cause”, the wilful misconduct, disobedience or wilful neglect should be addressed with the employee by the employer to ensure that the employee is given an opportunity to defend and/or correct their conduct. If no such allotment is given, the employee may contest the “just cause” status of termination. (Is it worthwhile to explain the employer’s obligation of progressive discipline?)

The employment law team at Hummingbird Lawyers LLP has experience and success in advocating for its clients. If you would like to know more about your rights as an employee, we are here to answer any questions and provide guidance and advice.