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Willson Lewis LLP

Willson Lewis LLP. E MPLOYMENT L AW: H IRING, F IRING, AND E VERYTHING IN B ETWEEN. S ATISFIED C LIENTS A RE O UR G REATEST S TRENGTH!

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Willson Lewis LLP

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  1. WillsonLewis LLP EMPLOYMENT LAW: HIRING, FIRING, AND EVERYTHING IN BETWEEN SATISFIED CLIENTS ARE OUR GREATEST STRENGTH! Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property disputes, and collections 67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com

  2. WillsonLewis LLP Biographies CATHERINE E. WILLSON, B.A., LL.B., PARTNER A longstanding member of the Ontario Bar Association, Catherine E. Willson is a founding partner of Willson Lewis LLP, and has established a successful practice in employment law, civil litigation, equine, collections, construction, and family law. She was an executive member of the Canadian Bar Association (Ontario) – Civil Litigation Section. She is also a member of the Advocates Society, the Association of Trial Lawyers of America, and the Toronto Construction Association. Catherine is both the Chairman of the Risk Management Committee and an Honourary Governor of the Royal Agricultural Winter Fair. Catherine is the legal expert for the Canadian Federation of Independent Business (Member Services) and is a regular speaker at legal and business conferences, an instructor at the University of Guelph, and writes on legal issues for several national publications. CRAIG A. LEWIS, B.A., LL.B., PARTNER Has been practicing employment law since being called to the Bar. He received his Bachelor of Laws degree from Queen’s University and was admitted to the Law Society of Upper Canada in 1993. A member of the Ontario Bar Association, Advocates Society, Canadian Association of Black Lawyers and the Metropolitan Toronto Lawyers Association. Craig has been a speaker at Ontario Bar Association seminars concerning advocacy matters and has litigated at all levels of Court in the Province. In his employment practice, Craig has prepared employment contracts and independent contractor agreements. He has provided advice on hiring, terminations packages and wrongful dismissal claims. He has assisted clients in drafting employment policy manuals. Craig has extensive experience in responding to human rights complaints.

  3. WillsonLewis LLP Biographies SYLVIA L. TINT, B.A., LL.B. - ASSOCIATE Sylvia was called to the bar in 1993, having received her LL.B. from Queen’s University, She is a frequent writer and speaker in employment and other areas of the law, and is a former editor of the Queen’s Law Review. She has extensive experience in civil and commercial litigation and has appeared as counsel in all levels of Ontario Courts and many administrative bodies (such as the Human Rights Commission). While maintaining a varied commercial and civil litigation practice, Sylvia has a large practice in employment related issues, such as: negotiating and drafting employment contracts, preparing employment policies, warning letters and termination packages; and advising and representing clients in human rights claims, employment standards matters, and wrongful dismissal claims. MARLENE KAZMAN B.Sc., LL.B. - ASSOCIATE Marlene was called to the Ontario Bar in 1993, having received her LL.B. from the University of Western Ontario and completing her articles at one of the oldest law firms in Canada. Marlene’s practice includes civil, matrimonial and construction lien law. Marlene has trial experience at all levels of Court in the Province of Ontario, and she is a member of the Ontario Bar Association and the Women’s Law Association of Ontario. Marlene is a frequent contributing writer of legal information articles for the National Credit News. STEFENIE NAVASCUES, B.A., LL.B. - ASSOCIATE Stefanie Navascues was called to the Ontario Bar in 2003. After completing her articles with the Ministry of the Attorney General, Stefanie entered private practice as an associate in a boutique civil litigation firm. She has appeared before the Ontario Superior Court of Justice, as well as the Ontario Court of Justice and various administrative tribunals. Stefanie continues her practice in all areas of civil litigation. Stefanie is a member of the Ontario Bar Association, the York Region Law Association, and is also a member of the Ontario Trial Lawyers' Association. Stefanie is fluent in Spanish, and has a good working knowledge of French and Italian.

  4. Experienced counsel practising in: CIVILLITIGATION • dispute resolution • court actions, applications, injunctive relief • commercial disputes • personal disputes • mediation and arbitration EMPLOYMENT LAW • employment contracts and consulting agreements • wrongful dismissal • conflicts in the workplace • termination packages

  5. Experienced counsel practising in: CONSTRUCTION LAW • construction projects (general contract/project management/design build) • preparation of construction contracts • tender advice and resolution of disputes • negotiation and litigation of construction disputes including lien actions and breach of trust issues FAMILY LAW • divorce, separation, custody, support, property issues • separation agreements • cohabitation and marriage contracts • settlement negotiation and mediation

  6. Experienced counsel practising in: EQUINE LAW • Dispute resolution, litigation • purchase and sale agreements, boarding agreements and leasing agreements • co-ownership agreements and syndications

  7. T h e E m p e l h o y T m e x n a t I T n s e u m r a o n c c e n I t c A c A t The Canada e h T h T e l a n Pension Plan o W i t o a r k p p l u a c c e c & O Act h S a t f l e a t y e & H y I t n e s f u a r a S n c e t c A A c t e h T t n e m y o l p m E s d r a d n a t S t c A EMPLOYMENT RELATED STATUTES EMPLOYER LIABILITY TheCanada Labour Code

  8. HIRING – EMPLOYMENT CONTRACTS APPLICATIONS & RECRUITING DO NOT: Ask about age, date of birth, hair or eye colour, weight or height  Ask about religious affiliation  Ask about Canadian citizenship  Ask for ‘maiden name’ or greeting identification, i.e. Mr. or Miss.

  9. JOB OFFERS  Avoid making a verbal job offer with different written terms later  Do advise that the offer is forthcoming and send it in writing  Do give time for the employee to review  Do encourage the employee to get legal advice  Do get signature before work starts

  10. EMPLOYMENT CONTRACTS • CONSIDER: •  Indefinite term or specific project or task •  Describing duties and specifying ability to change •  Describing the probationary nature of the position and ability to dismiss without notice •  Providing for Lay-off •  Providing for resignation notice by employee and waiver •  Inserting a non-solicitation/non-competition clause • Inserting a confidential information clause  Ensure that adequate consideration is provided for the contractual relationship

  11. TESTS – INDEPENDENT CONTRACTOR  Control Test  the degree of direction and control over a worker  Ownership of Tools  Chance of Profit  Risk of Loss  Organization Test is an individual’s work an integral part of business operations of the company?

  12. COMPANY DO’S:  Require a written contract for services executed by the contractor. • Include a termination provision in the contract with notice of no less than an employee’s entitlement under the Employment Standards Act – do not make reference to the Act in the contract. •  Make the contract for a definite term or task. •  The contract should indicate that the person is an independent contractor and not an employee. •  The contract should state that the contractor is responsible for paying all Government remittances to the appropriate agencies. It is a good idea to obtain an indemnity from the contractor to pay remittances required by Government agencies in the future.

  13. COMPANY DO’S:  Clearly define the scope of authority provided to the contractor – for example, the contractor may not enter into contracts on behalf of the company. • The contract should indicate that the contractor is free to provide services to others. •  The contract should contain a non-solicitation/anti-competition clause. (Refer to Company Don’ts •  The contract should contain a confidential information clause. •  Ensure that adequate consideration is provided for the contractual relationship. •  Require invoices for services from the contractor.

  14. COMPANY DO’S:  Clearly sever a prior employment relationship before entering into a contractual relationship. • Require the contractor to obtain a G.S.T. number and to charge or remit G.S.T. to the Government. •  Where transportation services are provided, specify that the contractor is responsible for the vehicle and all of its expenses. •  Permit the contractor to hire employees or subcontractors.

  15. COMPANY DON’TS:  Include a non-solicitation/anti-competition clause in the contract (refer to Company Do’s). • Refer to the contractor as a commissioned sales person or speak of commission sales or salaries in the contract. •  Provide T4 slips. •  Exert control over the contractor’s hours of work, vacation time, or subject the contractor to company supervision or performance evaluations. •  Allow the contractor to use company stationary or business cards.

  16. COMPANY DON’TS: • Supply a permanent workstation or office space or encourage the contractor to use company equipment or company staff as assistants.  Restrict the number of clients that the contractor can serve. • Prevent the contractor from soliciting his/her own clients or set quotas for the contractor. •  Require the contractor to comply with company policies and discipline procedures. •  Provide medical or disability benefits or vacation pay.

  17. DUTY TO ACCOMODATE DO:  Listen to the Employee  Work with the Employee  Make business needs known  Ask for medical information from Employee’s physicians  Tolerate absenteeism that is disability related  Accept a modified work schedule that is reasonable  Be sensitive to Employee concerns  Keep medical information confidential – Need to Know Only

  18. DUTY TO ACCOMODATE • DON’T: •  Harass the employee for medical information •  Prefer employer’s opinion over medical opinion •  Send the employee to a company doctor, unless exceptional circumstances • Treat the employee as if she/he is malingering  Discipline for disability related absence  Intimidate or bully the employee  Refuse to deal with the employee’s lawyer

  19. EMPLOYEE MANAGEMENT DO’S • DO: •  Have regular performance reviews •  Create a paper trail •  Show the level of performance required • Communicate your expectations • Give clear, prompt and consistent instruction  Give written instruction • Give warning memo  Provide training

  20. DISMISSAL What is Constructive Dismissal? Demotion  Unilateral reduction in salary  A hostile work environment (problem managers)  Geographic transfer  Change in commission structure or method of remuneration

  21. DISMISSAL Just Cause v. Without Cause Just Cause:  No notice or pay in lieu required  Requires serious misconduct (i.e. theft) by employee, or gross incompetence or insubordination  Warnings must be issued  A reasonable opportunity to explain, or improve, must be given Without Cause:  Notice or pay in lieu required pursuant to Employment Standards Act, or Canada Labour Code; and common law

  22. The Employment Standards Act, 2000 • Employer notice period • 57.   The notice of termination under section 54 shall be given, • at least one week before the termination, if the employee’s period of employment is less than one year; • at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years; • (c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years; • (d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;

  23. The Employment Standards Act, 2000 Employer notice period (Continued) (e) at least five weeks before the termination, if theemployee’s period of employment is five yearsor more and fewer than six years; (f) at least six weeks before the termination, if the employee’s period of employment issix years or more and fewer than seven years; (g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or (h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.

  24. The Employment Standards Act, 2000 • Pay instead of notice • 61.  (1)  An employer may terminate the employmentof an employee without notice or with less noticethan is required under section 57 or 58 if the employer, • pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and • continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.

  25. The Employment Standards Act, 2000 • Entitlement to severance pay • 64.  (1)An employer who severs an employmentrelationship with an employee shall payseverance pay to the employee if the employeewas employed by the employer for five years or more and, • the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or • the employer has a payroll of $2.5 million or more.

  26. The Employment Standards Act, 2000 Calculating severance pay 65.  (1)  Severance pay under this section shall be calculated by multiplying the employee’s regular wages for a regular work week by the sum of, • the number of years of employment the employee has completed; and • the number of months of employment not included in clause (a) that the employee has completed, divided by 12.

  27. Canada Labour Code DIVISION X INDIVIDUAL TERMINATIONS OF EMPLOYMENT Notice or wages in lieu of notice 230. (1) Except where subsection (2) applies, an employer who terminates the employment of an employee who has completed three consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, give the employee either (a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or (b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice.

  28. Canada Labour Code DIVISION XI SEVERANCE PAY Minimum rate 235. (1) An employer who terminates the employment of an employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of (a) two days wages at the employee’s regular rate of wages for his regular hours of work in respect of each completed year of employment that is within the term of the employee’s continuous employment by the employer, and (b) five days wages at the employee’s regular rate of wages for his regular hours of work.

  29. REASONABLE NOTICE Employment Standards Act is a minimum only  Ball park/range of notice  Factors – Age, Seniority, Length of Employment  Month per year maxim – Right or Wrong  Bad faith damages  Benefits & Pension  Disability Plan Issues

  30. HOW TO TERMINATE  Written Notice  Private Meeting, Little Said  Respectful  Make Notes  Securing Confidential Information and Property  Record of Employment in 7 days  Termination Pay due in 7 days or next payroll  Job Placement Assistance

  31. MANDATORY RETIREMENT As of December 12, 2006,there is no mandatory retirement at age 65in the Province of OntarioWHAT DOES THIS MEAN?

  32. WillsonLewis LLP EMPLOYMENT LAW: HIRING, FIRING, AND EVERYTHING IN BETWEEN SATISFIED CLIENTS ARE OUR GREATEST STRENGTH! Offering experienced counsel practising in all aspects of civil and commercial litigation including employment law, construction, family, equine law, wrongful dismissal, tax disputes, estate and property disputes, and collections 67 Mowat Avenue, Suite 346, Toronto, Ontario M6K 3E3Tel: 416 534-9504 Fax: 416 534-9503 www.willsonlewis.com

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