Laid Off by Oracle in Canada? Here Is Why the First Offer May Not Be Enough

An estimated 30,000 employees of American tech giant Oracle woke up Tuesday morning to an email advising that their employment had been terminated effective immediately. Sent at 6 a.m., the message triggered the largest layoff in the company’s history and affected employees around the world, including in the United States, India, Mexico, and Canada.

For terminated Oracle ex-employees in Canada, while this may be unwelcome news, the silver lining is that they may be owed more than they think. At Levitt LLP, we have represented employees for decades in some of the most significant termination and wrongful dismissal matters in Canada. Our firm has long advised workers facing mass layoffs, abrupt terminations, and inadequate severance offers from large employers. When a company like Oracle cuts thousands of jobs at once, affected Canadian employees should understand that the package put in front of them may be far less than what the law actually requires. As a matter of fact, employees may be owed up to 30 months’ compensation, for all aspects of their compensation package with Oracle.

Although Oracle is an American company, Canadian workers remain protected by Canadian employment law. Their rights are governed by the law where they work, not by the company’s head office.

That means Oracle’s Canadian employees do not have to accept the minimum package offered by the company. They should avoid signing any termination documents before fully reviewing their options with an employment lawyer. They should also keep in mind that any deadline set out in the termination letter is chosen by the employer. It is not a legal deadline, and there is no obligation to sign away rights within the time the company demands.

For employees affected by Oracle’s mass layoffs, the termination may amount to wrongful dismissal. That means Oracle, or any other employer, has failed to provide the full notice or pay in lieu of notice that the employee is legally owed.

There are many reasons a termination may be wrongful. One of the most common is an unenforceable termination clause in the employment agreement. Employers often rely on those clauses to limit severance obligations, but where the clause does not comply with Canadian employment law, it may be void and unenforceable.

When that happens, the employee may be entitled to common law severance, which can be significantly greater than the package initially offered by Oracle. It may also include all parts of an employee’s compensation, including:

• Base salary
• Bonuses
• Benefits
• RRSP or pension contributions
• Stock options
• Vacation pay
• Other forms of incentive compensation, such as access to a work phone or car

The amount an employee may be entitled to depends on several factors, including their age, position, compensation, and length of service. In some cases, employees may be owed as much as 30 months of compensation.

Oracle’s termination package is only an opening offer, and it should be treated that way. It is rarely the full extent of what a terminated employee may be entitled to receive. Speaking with an expert employment lawyer at Levitt LLP can help employees determine whether they have a wrongful dismissal claim and, if so, what Oracle may actually owe them.

For Oracle employees blindsided by these layoffs, this is the time to assess their options, understand their rights, and make sure they receive what they are truly owed. We can help.

BUILDING A SOLID CONSTRUCTIVE DISMISSAL CASE:

AN ESSENTIAL GUIDE FOR TORONTO EMPLOYEES

Constructive dismissal is a term that may send shivers down the spine of any employee. You might love your job, be dedicated to your career and then suddenly find yourself in a situation where your employer’s actions have forced you to resign. But what exactly is constructive dismissal, and more importantly, how do you build a solid case if you believe you have been constructively dismissed?

In the complex world of employment law, constructive dismissal stands out as a particularly nuanced and often misunderstood concept. This blog post will serve as a guide walking you through the essentials of building a solid constructive dismissal case, providing you with the knowledge to protect your rights and navigate this challenging situation.

What is Constructive Dismissal?

Constructive dismissal occurs when an employee resigns due to their employer’s actions that have fundamentally altered their employment conditions, making the work environment intolerable and/or significantly different from what was originally agreed upon. In other words, the employer’s actions demonstrate an intention to no longer be bound by the original employment agreement. Although it is the employee who resigns, this situation is treated in law as if the employer terminated said employee’s employment.

Think of it this way: you didn’t quit; you were pushed out.

How can you Identify the Signs of Constructive Dismissal?

The key to building a strong constructive dismissal case is to act fast. To successfully claim constructive dismissal, it is imperative to recognize the common indicators of same, which include:

• A Significant Reduction in Salary or Benefits: 
  • A substantial pay cut (generally of 17% or more), loss of bonuses, or significant reduction in benefits
• Demotion:
  • A demotion to a lower position with less responsibility and authority
• Drastic Change in Job Duties:
  • A radical alteration of your job duties, especially if it involves a significant decrease or increase in responsibility, skill level required, or prestige
• Hostile Work Environment:
  • Persistent harassment, bullying or discrimination that creates an intolerable and/or poisoned work environment
• Forced Relocation:
  • Requiring you to relocate to a different city or province without reasonable notice or compensation
• Suspension Without Pay (Unless Justified):
  • A suspension without pay, particularly if it is not for a legitimate disciplinary reason, may be grounds for constructive dismissal
• Employer Repudiation of the Employment Contract:
  • When an employer shows they are no longer following the express terms of the employment contract

It is important to keep in mind that not all workplace changes will constitute constructive dismissal. There must be a unilateral and substantive alteration of the fundamental terms of your employment.

Steps to Building Your Case:

(1) Document Everything:

This is absolutely crucial. You need to ensure to keep detailed records of all unilateral changes to your employment, including dates, times, specific details of the changes, and how they impacted you. Make sure to save emails, memos, performance reviews, and any other relevant documents. If conversations occurred, write down what was said, who was present, and the date of the communication.

(2) Object in Writing (If Possible):

As soon as possible after the change is implemented, you must ensure to clearly communicate your objection to said change in writing (via email works just fine). State that you do not accept the new terms of employment and that you believe the change(s) constitute(s) a breach of your employment agreement. It is important to be polite but firm.

(3) Seek Legal Advice Immediately:

Don’t wait! Consult with an experienced employment lawyer as soon as you suspect constructive dismissal. Our team of experienced lawyers can assess the strength of your case, advise on the best course of action, help you develop a strategy and help you understand your rights and potential entitlements to compensation.

(4) Consider Your Options Carefully:

Your lawyer will help you evaluate your options, which might include:

• Resigning and Claiming Constructive Dismissal
  • This is the most common approach wherein you resign and then pursue a claim for wrongful dismissal damages.
• Negotiating a Severance Package
  • Your lawyer can assist with negotiating a mutual separation agreement and severance package with your employer.

(5) Understand the “Reasonable Time” Requirement:

As mentioned earlier, you must resign within a reasonable time after the change to ensure you are not seen as agreeing or acquiescing to  said change. What is reasonable will depends on the circumstances, but it is generally best to act quickly.

(6) Avoid Accepting a New Contract:

Be very cautious about signing any new employment contracts or agreements after the change. Always ensure to have any documents reviewed by your lawyer before signing.

(7) Be Mindful of Your Conduct:

While still employed, continue to perform your job duties to the best of your ability. Avoid any behavior that could be construed as insubordination, incivility or poor performance.

(8) Gather Evidence of Damages:

In addition to proving constructive dismissal, you will also need to prove your damages. This includes lost wages, benefits, and other financial losses. Keep track of your job search efforts and any expenses you incur.

Legal Considerations

In constructive dismissal cases, the primary burden of proof is on the employee to establish that constructive dismissal has occurred. However, in cases involving administrative suspension, the burden may shift to the employer to show that the suspension was reasonable or justified.

It is key to note that building a constructive dismissal case does not come free of challenges, such as:

1. Risk of Resignation:

Resigning from your position is a significant step and should not be taken lightly. If your claim is unsuccessful, you may find yourself without employment or compensation.

2. Employer’s Defence:

Your employer may argue that the changes forming the basis of your constructive dismissal claim were within their rights or that you accepted the changes by continuing to work.

3. Proving Intolerable Conditions:

Demonstrating that working conditions were so intolerable that a reasonable person would feel compelled to resign can be challenging.

1. Mitigation of Damages:

Despite being constructively dismissed, you still have duty to mitigate your damages by seeking alternative employment.

Preventive Measures for Employees

To protect yourself from potential constructive dismissal situations:

1. Understand Your Contract: Familiarize yourself with the terms of your employment contract, including any clauses related to changes in job duties or compensation.
2. Keep Records: Maintain a personal record of your job responsibilities, achievements, and any changes to your role over time.
3. Stay Informed: Keep abreast of your rights as an employee under Ontario employment law.
4. Communicate Effectively: Address concerns with your employer promptly and professionally, documenting all communications.

Conclusion

Building a solid constructive dismissal case requires careful consideration, thorough documentation, and professional legal guidance. Remember, each case is unique, and the success of a constructive dismissal claim depends on the specific circumstances and evidence presented. By staying informed, documenting changes, and seeking appropriate guidance, you can navigate the complexities of constructive dismissal and work towards a fair resolution, ensuring your rights as an employee are protected.

If you believe that you have been constructively dismissed, do not hesitate to contact one of our experienced lawyers for a consultation today. We are here to help you navigate this challenging situation.

Probationary Period Rights in Ontario: Everything You Need To Know

Probationary clauses are a common feature in employment contracts. These clauses provide employers with a “trial period” to assess an employee’s suitability for a role. However, understanding the legal framework and best practices surrounding probationary clauses is crucial for both employees and employers. In this blog, we will delve into the specifics of probationary clauses, their implications, and how they should be drafted to ensure enforceability.

What is a Probationary Clause?

A probationary clause is a provision in an employment contract that allows an employer to terminate an employee during a specific period, usually without notice or severance pay. This period is typically used to evaluate the employee’s performance and fit within the organization. In Ontario, there is no automatic probation period; employers must explicitly include a probationary clause in the employment contract to utilize this provision.

Legal Framework in Ontario

Ontario’s Employment Standards Act, 2000 (ESA) does not mandate a specific probationary period. The ESA does state that an employer shall not terminate an employee without providing notice or pay in lieu if they have been continuously employed for three months or more, although this is not explicitly a mandate for a probationary period:

• No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer,
• Has given the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or
• Has complied with section 61.

If an employee is terminated during a probationary period that exceeds three months, they may be entitled to termination and/or severance pay, depending on the terms of the contract and applicable laws.

Legal Enforceability of Probationary Clauses

The Ontario Court of Appeal has addressed the enforceability of probationary clauses in Nagribianko v. Select Wine Merchants Ltd. This case highlights that even a brief probationary clause can be enforceable. The contract included a simple clause stating “Probation…Six months,” which was deemed sufficient to oust common law reasonable notice if the employee was terminated during this period. The court held that the term “probation” has a clear meaning at common law, allowing termination without notice if the employer determines the employee is unsuitable for permanent employment.

Key Considerations for Probationary Clauses 

To ensure enforceability, a probationary clause must be clearly stated in the employment contract. The language used should be straightforward to avoid ambiguity. Compliance with the ESA is also essential to ensure that the clause meets the minimum standards prescribed by law. The duration of the probationary period should be clearly defined to prevent misunderstandings. Generally, probationary periods are three months long, but if an employer chooses a longer period, they must provide notice or pay in lieu of notice before terminating the employee as required by the ESA.

Performance Measures

During the probationary period, the employer can assess the employee’s skills, performance, and suitability for the position. It is important for employers to exercise their contractual duty of good faith when performing these assessments. This includes providing clear expectations and feedback to the employee. Employers should also maintain detailed records of performance evaluations and any issues that arise during the probationary period.

Can a Probation Period be Extended

There may be cases where extending the probationary period is necessary to continue assessing an employee’s suitability. However, employers must ensure that the employment contract clearly states that the probationary period can be extended. Otherwise, extending the probationary period without such provision could be considered a constructive dismissal. Employers should communicate any extensions clearly to the employee and ensure that the extension is reasonable and justified.

Termination During Probation

Terminating an employee during the probationary period can be less complex than terminating a full-time employee, because it typically doesn’t attract notice or pay in lieu of notice obligations. However, employers must ensure that they are complying with the terms of the employment contract and the ESA. Again, if an employee is terminated during a probationary period that exceeds three months, the employee is likely entitled to notice or pay in lieu of notice pursuant to the ESA.

At Levitt LLP, we are dedicated to assisting employees and employers with issues that arise in the workplace. Whether it’s about probationary clauses or any other employment-related issue, our experienced team is here to advocate for you. Contact us for a consultation and take the first step in creating your ideal contract.

Please note that this article is only to be used as general information, and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment contracts better and seek legal advice to their questions.

When to Consult an Employment Lawyer in Toronto: A Comprehensive Guide

Navigating the complexities of employment law can be daunting. Whether you’re an employee facing workplace challenges or an employer seeking to ensure compliance with employment laws, consulting an employment lawyer can provide invaluable guidance and protection. Here’s a comprehensive guide on when to seek the expertise of an employment lawyer in Toronto.

Scenarios when an Employment Lawyer is Needed:

For Employees

1. Termination of Employment

If your employment has been terminated without proper notice or severance, an employment lawyer can help you understand your entitlements and negotiate a fair severance package. This includes advising you on your rights under the Employment Standards Act, 2000 (ESA) and the common law.

2. Constructive Dismissal

If changes by your employer to your job have make it difficult for you to continue working, consulting a lawyer can help determine if you have grounds for a constructive dismissal. This includes significant changes to your job duties, compensation or work environment that were not previously agreed upon.

3. Workplace Harassment or Discrimination

If you’re experiencing harassment or discrimination at work, an employment lawyer can guide you through the process of filing a complaint and seeking legal action. This includes understanding your rights under the Ontario Human Rights Code.

4. Workplace Investigations

If you’re subject to a workplace investigation, having legal representation can protect your rights and guide you through the process. This is particularly important if you’re accused of wrongdoing and need to navigate complex legal procedures.

5. Contract Negotiations

When negotiating a job offer or reviewing a new employment contract, an employment lawyer can help you understand the terms and ensure they are fair, particularly regarding termination and severance clauses. This includes reviewing contracts for clauses that limit your rights.

For Employers

1. Drafting and Reviewing Company Contracts and Policies

Employment lawyers can assist in drafting and reviewing employment contracts, employee handbooks, and severance agreements to ensure compliance with employment laws and protect your business interests. Regular updates to your contracts and policies are crucial to reflect changes in the employment laws.

2. Employee Complaints

If an employee files a complaint or initiates legal action, consulting an employment lawyer is essential to protect your business and to help you navigate through the legal processes. This includes understanding your obligations under employment laws and how to respond effectively.

3. Company Changes

Before making significant changes, such as layoffs or altering employment terms, an employment lawyer can provide guidance to avoid potential legal issues and pitfalls. This includes ensuring compliance with employment standards and minimizing the risk of wrongful dismissal claims.

Selecting an Employment Lawyer

It’s advisable to seek out an employment lawyer as soon as an issue arises. If you’re an employer, it is advisable to regularly seek out an employment lawyer to ensure that your contract and policies are up to date on the law. Early intervention can prevent misunderstandings and protect your rights.

Selecting a lawyer with experience relevant to your specific needs, whether its wrongful dismissal, contract disputes, or workplace harassment.

Consulting an employment lawyer in Toronto can be a strategic move for both employees and employers. By understanding when to seek legal advice, you can better navigate the complexities of employment law and protect your rights effectively.

At Levitt LLP, we are dedicated to assisting employees and employers with issues that arise in the workplace, and our experienced team is here to advocate for you. Contact us for a consultation and take the first step in creating your ideal contract.

Please note that this article is only to be used as general information, and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment contracts better and seek legal advice to their questions.

Taking Action: Legal Steps to Handle Constructive Dismissal in Toronto

In employment law, constructive dismissal is one of the more complex and misunderstood concepts. Constructive dismissal occurs when an employer fundamentally changes the terms of employment or creates intolerable working conditions, effectively avoiding formally terminating an employee by forcing them to resign. These types of actions can legally amount to wrongful dismissal in Ontario under the common law and Employment Standards Act, 2000 (ESA). This means that an employee could have grounds for a claim for severance and other entitlements against their former employer.

This blog post will explore the legal steps employees should take if they experience constructive dismissal, as well as how employers can mitigate the risks associated with these kinds of claims.

What is Constructive Dismissal in Ontario?

Before getting to the legal steps involved in dealing with constructive dismissal, it is important to understand what types of actions qualify as constructive dismissal. In short, if an employer’s actions would lead a reasonable person to conclude that (1) there has been a substantial unilateral change to a fundamental term of the employment relationship, and (2) their continued employment is no longer tenable under the new terms, those actions likely amount to constructive dismissal. For example:

• Significant pay reduction: a substantial cut to compensation, salary, bonuses, or benefits
• Demotion or significant role change: altering job duties, title, or reporting structure in a way that diminishes the employee’s position or status
• Relocation: requiring an employee to move to a distant or unreasonable work location
• Toxic work environment: creating or failing to address a hostile, unsafe, or harassing workplace that forces the employee to resign
• Unilateral schedule changes: drastically changing work hours or shift patterns
• Temporary layoffs: in non-unionized workplaces, even a temporary layoff could be deemed constructive dismissal unless the employment contract explicitly allows for layoffs

 

Legal Steps for Employees Experiencing Constructive Dismissal

Step 1: Clearly Define the Change to the Employment Relationship

Employees should evaluate whether their employer’s action constitute a fundamental change to their job. Minor adjustments, like slight changes in duties or location, likely do not meet the threshold for constructive dismissal. See the list above for changes that do meet this threshold.

Step 2: Document Everything

Employees should maintain meticulous records, including:

• Emails, letters, or memos related to the change
• Performance reviews
• Employment contract
• Notes of conversations with management
• Any internal complaints
• Documenting the timeline and impact of changes

Step 3: Seek Legal Advice

Employees should consult an employment lawyer before resigning or taking any further action. Constructive dismissal claims depend heavily on the facts, and premature resignation or delayed action can weaken the case. A lawyer can assess whether the changes meet the legal threshold for constructive dismissal and provide individually tailored advice to the employee’s unique situation.

Step 4: Provide Formal Notice (Optional)

In some cases, it may be appropriate for the employee to notify the employer in writing that they view the changes as fundamental changes to their employment contract. This letter (called a demand letter) may request reinstatement to previous conditions or provide an opportunity for the employer to remedy the situation.

Step 5: Resign (Carefully)

Resignation should be a last resort and only after consulting with a lawyer. Courts will assess whether resignation was reasonable in the circumstances.  Immediate resignation without notice could undermine the claim unless there is a clear breach by the employer.

Step 6: File a Claim

If the situation is irreparable, the employee may commence a wrongful dismissal claim through their lawyer, seeking:

• Severance pay
• Notice pay (under the ESA and common law)
• Compensation for benefits loss
• Potential bad faith or punitive damages in particularly egregious cases

Legal Process for Employers Responding to Constructive Dismissal Claims

Step 1: Proactive Prevention

Employers can reduce their risk exposure to constructive dismissal claims by:

• Maintaining clear employment contracts: clearly outline the right to make changes, such as pay adjustments, duty modifications, or temporary layoffs.
• Communicating changes: when changes are necessary, explain the business reasons and consult with employees.
• Obtaining employee consent: where possible, seek written consent before implementing major changes.
• Monitoring workplace culture: promptly investigate and address complaints of harassment, bullying, or unsafe conditions.

Step 2: Internal Review

If an employee raises concerns about constructive dismissal, employers should:

• Investigate promptly: review the employee’s complaints and the history of changes to their employment.
• Evaluate the risk: assess whether the changes truly amount to constructive dismissal under the legal standard.
• Consult legal counsel: employment lawyers can provide invaluable risk assessments and strategies for resolution.

Step 3: Attempt Resolution

Where feasible, employers should try to resolve the dispute amicably. Options include:

• Restoring the employee’s original terms
• Offering compensation for changes
• Negotiating a mutually agreeable severance package

Step 4: Respond to Legal Claims

If the employee files a formal claim, the employer will need to respond appropriately through:

• A Statement of Defence (if a court claim is filed)
• Participation in settlement discussions or mediation
• Providing relevant documentation and evidence
• Employers should rely on legal counsel to craft their defence and evaluate whether to settle or proceed to trial. Defences often hinge on proving the changes were minor, reasonable in the circumstances, or permitted by contract.

Step 5: Explore Settlement Options

Many constructive dismissal claims resolve before trial through negotiated settlements. Settlements can save time and costs while allowing both parties to move forward. Settlement terms often include:

• Severance pay
• Release of future claims
• Confidentiality clauses

At Levitt LLP, we are dedicated to ensuring that your rights are protected. Whether it’s about constructive dismissal or any other employment-related issue, our experienced team is here to advocate for you. Contact us for a consultation and take the first step toward protecting your rights and entitlements.

Beyond Resignation: Dealing with Constructive Dismissal in the Workplace

Constructive dismissal is one of the most challenging things an employee can experience. If you are in an environment where your employer’s actions create an intolerable environment, such that you can’t bear the thought of going to work, understanding your legal rights and knowing how to respond is critical. This blog post will explore what constitutes constructive dismissal, the warning signs, and practical steps you can take if you believe you’re experiencing this form of workplace mistreatment.

What Is Constructive Dismissal?

Constructive dismissal occurs when an employee resigns due to an employer’s behavior that effectively forces the employee to leave their job. This might not look like a formal firing, but rather a series of actions or one substantial change that creates an unbearable work environment. Understanding these core aspects is the first step in recognizing when your rights might be violated. Common examples include:

• Significant changes to job responsibilities: if your role is significantly altered without your consent, it may be considered constructive dismissal
• Reduction in pay or benefits: a sudden and unexplained decrease in salary or benefits can signal a breach of your employment contract
• Hostile work environment: persistent harassment, bullying, or discrimination can make employees want to resign
• Unsafe working conditions: employers are legally obligated to provide a safe workplace, and failure to do so can lead to constructive dismissal claims

Recognizing the Signs

Before taking any action, it’s important to assess whether your situation truly qualifies as constructive dismissal. Identifying the warning signs early can empower you to act before the situation escalates. Here are some red flags that indicate potential constructive dismissal:

• Unilateral changes to your contract: if your employer makes substantial changes to your job without your consent, such as altering your responsibilities (adding or removing), working hours, location or compensation, this could be a breach of contract
• Persistent hostility: a sudden increase in workplace hostility or bullying—especially if management seems to condone or ignore the behavior—can create a toxic environment that may force an employee to resign
• Lack of support or communication: a breakdown in communication or support from management, particularly when you’ve raised concerns about your workload or work conditions, is another sign of constructive dismissal
• Intimidation and pressure: being cornered into making decisions or working under duress can be a strong indicator that the employer is indirectly forcing your departure

 

 

Dealing with Constructive Dismissal

If you believe your work environment has become intolerable due to your employer’s actions, consider the following steps:

1. Document Everything

Documentation is your most powerful tool when faced with constructive dismissal. Documentation can establish a timeline and provide evidence if you decide to pursue a legal claim. Keep detailed records of:

• Dates and times when incidents occur
• Descriptions of what happened, including who was involved and any witnesses
• Copies of any written communication, such as emails, memos, or performance reviews that might support your claim
• Notes from meetings or conversations with your supervisor or HR

2. Review Your Employment Contract and Company Policies

Before taking any formal steps, carefully review your employment contract and the company’s policies. Look for clauses related to changes in employment conditions, grievance procedures, and dispute resolution. Understanding your contractual rights and the company’s internal processes can help you identify potential breaches and determine your next steps.

3. Communicate Your Concerns

If you are comfortable doing so, consider discussing your concerns with your manager, supervisor, or HR department. A formal conversation or written complaint can sometimes resolve issues before they escalate. Keep a record of this communication, including any responses you receive.

4. Seek Legal Advice

Employment law is complex, and the details of each case vary significantly. Consulting an employment lawyer who has experience with constructive dismissal is essential. They can help you understand:

• The strength of your case: a lawyer will review your documentation and evaluate whether you have a strong claim
• The legal process: a lawyer can explain the steps involved, from internal complaints to potential litigation, and everything in-between
• Possible outcomes: understanding what you might expect in terms of compensation or reinstatement can help you make informed decisions about your next steps

5. Explore Alternative Dispute Resolution Options

In some cases, it may be possible to resolve disputes without proceeding to litigation/going to court. Alternative dispute resolution (ADR) methods, like mediation or arbitration, can provide a less adversarial and more cost-effective solution. Your lawyer can advise you on whether ADR is a good option in your situation.

6. Take Care of Yourself – Physically and Mentally

Dealing with a hostile work environment can take a toll on your health. It’s important to prioritize your mental and physical wellbeing. Consider speaking with a mental health professional or counselor who can help you manage stress and develop coping strategies during this challenging time.

Understanding the Legal Implications

Constructive dismissal has serious legal implications. By leaving a job under duress, you may be entitled to compensation for lost wages, emotional distress, and other damages. However, these cases can be complex, and the outcome will depend on factors like:

• The clarity of your employment contract: vague or ambiguous contracts can sometimes make issues more complicated
• The evidence available: solid documentation is crucial in proving that your resignation was a direct result of your employer’s actions
• Timing: delaying action can often weaken your claim (because the longer the amount of time that goes by after the change, the more likely you will be deemed to have accepted the change), so prompt consultation with a lawyer is advisable

Navigating constructive dismissal requires a careful and methodical approach. It begins with recognizing the signs that your work environment has deteriorated and knowing what your rights are. Documenting every instance of misconduct, reviewing your contractual obligations, and engaging in open communication with your employer are essential steps. Meeting with an experienced employment lawyer can give you guidance tailored to your unique circumstances and peace of mind. Lawyers are there to help you understand your rights, protect your interests, and pursue the compensation you deserve.

By staying informed and proactive, you can protect your rights and ensure that your career continues on a path that respects your dignity and worth. Constructive dismissal is a serious matter, but with the right support and guidance, you can take control of your situation and work towards a more positive future.

At Levitt LLP, we are committed to supporting employees who face unjust treatment in the workplace. If you believe you have been constructively dismissed, reach out to us for a confidential consultation. Our team of experienced lawyers is here to help you understand your options and help you reach a just resolution.

Please note: This post is intended for informational purposes only and should not be taken as legal advice. For guidance tailored to your circumstances, please consult with a qualified employment lawyer.

The Role of an Employment Lawyer in Your Company’s Growth and Success

When people start a business, they often retain lawyers to handle some of the complex work that goes into establishing and growing a business. This includes retaining lawyers to draft partnership agreements and articles of incorporation, negotiate contracts for the sale of goods, and even review the business’s tax documents.

One area of law that businesses don’t always turn their minds to when starting their business is employment law. Failing to do so could impose huge legal liabilities on employers, whether it be from a workplace safety audit, human rights complaint, or a wrongful dismissal lawsuit. This is why retaining an employment lawyer can help support the growth and success of your company.

Workplace Safety and Compliance

All employers have the duty to provide a safe workplace and the duty to develop and implement policies and programs to prevent and eliminate workplace violence and workplace harassment. For countless employees and employers, workplace safety is one of their paramount concerns. Nobody wants to see their friends or colleagues injured on the job or be injured themselves.

When employees are injured on the job, it creates an array of risks for both employers. They have to report injuries and accidents, ensure that the incident can’t, and won’t, be repeated, and prepare for the employee’s return to work, without intentionally or inadvertently discriminating against the employee as a result of their injury.

Employers must also comply with provisions of the Occupational Health and Safety Act (“OHSA”) that concern the development and review of workplace safety policies, the creation of a joint health and safety committee, and publicly displaying a copy of OHSA materials produced by the provincial government, and the company’s health and safety policies. Being uninformed and ignorant of your responsibilities as an employer is not a defence for non-compliance with OHSA.

Some, but not all, employers are also required to register for coverage under the Workplace Safety and Insurance Board (“WSIB”). Employers who are required to register for coverage must do so within 10 days after hiring their first employee, even if that employee does not work in a dangerous part of the business.

Workplace safety and compliance is a lengthy and complex process for all employers, regardless of size and industry. It can be incredibly difficult and daunting to attempt to navigate the OHSA rules and requirements by yourself. If you have questions about your occupational health and safety obligations and responsibilities, you should contact us.

Unlawful Discrimination & Human Rights Violations

Workplace discrimination and human rights violations are some of the most common types of cases that employment lawyers handle. Workplace discrimination can include a wide range of discriminatory conduct, including racist or sexist harassment from supervisors or other employees, discrimination based on a physical or mental disability, age, religion, and more.

The workplace is supposed to be free from discrimination for all employees in Ontario. That is unfortunately not always the case. Unfortunately, there is as much variation in the types of discrimination that employees face as there is variation among individuals.

As with workplace safety compliance, employment lawyers also regularly work with employers to ensure that their workplaces remain discrimination free. This includes advising on implementing policies and procedures to protect employees and discipline those guilty of discriminatory conduct.

Employers have the duty to prevent discrimination in the workplace and to accommodate employees with disabilities and other human rights needs. If you are looking to review your policies or ensure you are protecting your employees from discrimination, you should contact our firm immediately.

Reviewing Employment Contracts

Employment contracts are the governing agreements in employment relationships. They set out the core elements of a person’s employment, including their wages, benefits, location and hours of work, and even their job duties. They also set out additional conditions that allow employers to take certain actions, including introducing a probationary period, temporarily laying off an employee, and binding the employee with restrictive covenants.

Many new and small businesses provide workers with contracts and assume that this makes them “independent contractors”, hoping that this will protect the business from the liabilities and requirements of having employees, such as having to deduct payroll taxes or pay termination pay to dismissed workers. This is not the case.

Courts and government agencies, including the Canada Revenue Agency, look past the written words of contracts to determine the classification of workers. Many workers classified as “independent contractors” are actually employees and their employers will be on the hook for liabilities such as termination pay.

Retaining an employment lawyer can help you sort out whether your workers are employees or not, and more importantly, a skilled employment lawyer can draft a termination clause that will limit the employee’s entitlements on termination to the minimums under the Employment Standards Act, 2000 (the “ESA”). If you are recruiting a new employee or about to terminate one, you may benefit by having a lawyer review your contracts to see if they are enforceable.

If you have just been terminated ‘without cause’ or you are offered a severance package that limits you to your ESA entitlements, you may benefit by having a lawyer review your contract to see if you can get more compensation than your contract suggests.

Wrongful Dismissal

The biggest reason why businesses should retain an employment lawyer is to represent them in cases of wrongful dismissal. When an employer terminates an employee ‘without cause’, they are required to give the employee notice of termination or pay them wages equivalent to what the notice period would be.

Employers use termination clauses contained within employment contracts to limit the amount of notice owed to an employee upon termination to just the minimum notice under the ESA, which is measured in weeks. Employees try to get out of these clauses because they want to receive notice of termination under the common law, which is typically measured in months.

An unenforceable termination clause in an employment contract means that employees who are terminated without cause are entitled to common law notice of termination, which is worth more than the minimum amounts under the ESA.

Many employers wrongly assume that they can write a simple termination clause that uses stereotypical language, and that will be sufficient to limit an employee’s entitlements to the minimums under the Employment Standards Act, 2000 (the “ESA”). Worse, many employers use termination clauses written in other provinces or countries and assume they will be sufficient for Ontario. Clauses drafted in this manner are unenforceable and allow an employee who has been fired to sue for common law wrongful dismissal damages.

Having an experienced employment lawyer draft employment contracts for your company can save your business significant time and expense if your business is sued for wrongful dismissal.

Employment lawyers spend the majority of their time working on wrongful dismissal cases including terminations with and without cause, and constructive dismissal claims. Having an experienced employment lawyer familiar with the intricacies of wrongful dismissal cases can make (or break) your case. Wrongful dismissal cases are not always straightforward, and include countless steps and issues, including the complexities of determining reasonable severance, whether there was cause to dismiss, human rights violations, and attempting to enforce a termination clause.

At Levitt LLP, we specialize in guiding employers through the complexities of all areas of employment law. Our experienced team is committed to helping you understand any questions that you may have about employment law. Contact us for a consultation and take the first step in building your new business.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment contracts better and seek legal advice to their questions.

WHAT IS THE MINIMUM WAGE IN ALBERTA IN 2025?

Knowing the minimum wage is of key importance for employees and employers alike. Employees want to know it to determine if a job is worth applying for, if they are being underpaid, and if their employer will have to increase their pay. This is true whether the employee is a student who just started working, an experienced employee with years of service under their belt, or someone approaching retirement.

Employers likewise need to know the minimum wage so that they appropriately compensate all employees for their work and so they do not run afoul of employment standards legislation. Employers also need to know the date that the minimum wage changes, so that they can be ready to increase the pay rate of eligible employees.

What is the minimum wage?

The minimum wage is the lowest hourly wage that an employer can legally pay their employee. Employers are free to pay their employees more, but the law requires that employees cannot be paid less than the minimum. The minimum wage applies whether an employee is part- or full-time, paid an hour rate, commission, incentive, flat rate, or a salary. However, some industries and professions are exempt from the minimum wage provisions. All of these categories are further discussed below.

The minimum wage entitlements and exemptions in Alberta are set out in the Employment Standards Code, RSA 2000, c E-9 (the “ESC”) and its regulations. If your employer refuses to pay you at the minimum wage, you should contact us immediately.

What is the minimum wage in Alberta in 2025?

General Minimum Wage Rate

In October 2018, the general minimum wage which applies to most employees in Alberta increased to $15.00 per hour.

Students

The minimum wage for students under the age of 18, who work 28 hours per week or less when school is in session is $13.00 per hour. Students must be paid the general minimum wage of $15.00 per hour for any hours exceeding 28 hours in one week. Students are also entitled to overtime pay.

Domestic Employees

The minimum wage rate for domestic employees who live in their employer’s home is $2,848.00 per month. Employers are required to pay the full monthly minimum wage, regardless of hours worked. Employers are only allowed to pro-rate the minimum monthly wage when the employee agrees to work for only a portion of a month, and employers are only allowed to deduct $4.41 per night of lodging and $3.35 per meal consumed.

For domestic employees who don’t live in their employer’s home, the minimum wage rate is $15.00 per hour. Employers are only allowed to deduct $3.35 per meal consumed.

The ESC’s overtime compensation and restrictions on maximum hours of work do not apply to domestic employees.

Weekly Minimum Wage

Employees in some professions are entitled to a weekly minimum wage of $598.00 per week instead of the general minimum wage. The professions who are entitled to the weekly minimum wage include, but are not limited to,  architects, accountants, chiropractors, dentists, engineers, geoscientists, lawyers, optometrists, psychologists, veterinarians, and information systems professionals.

How is the minimum wage in Alberta in 2025 calculated for a class of employees?

Unlike other provinces, such as British Columbia or Ontario, Alberta’s minimum wage does not increase with inflation. Alberta’s general minimum wage has remained at $15.00 per hour since October 2018.

Is the minimum wage in Alberta in 2025 still applicable to those who are paid on an incentive or commission basis?

Unless exempt under the ESC, for employees whose pay is based entirely or partly on an incentive or commission basis, the employee’s pay must amount to at least the minimum wage for each hour worked.

Employers must calculate, based on each pay period (to a maximum of one month), the average hourly wage of the employee. If the calculated hourly wage is below the minimum wage, it must be topped up to at least the minimum wage for all hours worked. If the calculated hourly wage is above the minimum wage, the employee is to be paid their incentive or commission pay.

Who is exempt from the statutory minimum wage provisions under the ESC?

Pursuant to Alta Reg 14/1997, the following classes of employees are exempt from the minimum wage under the ESC:

• Real estate brokers;
• Securities salespersons;
• Insurance salespersons paid entirely by commission;
• Students in a work experience program approved by the Alberta government;
• Students in an off-campus education program provided under the Education Act;
• Extras in a film or video production;
• Counsellors or instructors at a non-profit educational or recreational camp for children, handicapped individuals, or religious groups; and
• Employees not covered by the ESC.

For more information on minimum wage or minimum employment standards in Alberta, please contact our firm.

At Levitt LLP, we specialize in guiding employees through their rights and entitlements under the Alberta Employment Standards Code. Our experienced team is committed to helping you understand any questions that you may have about employee compensation. Contact us for a consultation and take the first step toward protecting your rights and entitlements.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment standards better and seek legal advice to their questions.

WHAT IS THE MINIMUM WAGE IN BRITISH COLUMBIA IN 2025?

Knowing the minimum wage is of key importance for employees and employers alike. Employees want to know it to determine if a job is worth applying for, if they are being underpaid, and if their employer will have to increase their pay. This is true whether the employee is a student who just started working, an experienced employee with years of service under their belt, or someone approaching retirement.

Employers likewise need to know the minimum wage so that they appropriately compensate all employees for their work and so they do not run afoul of employment standards legislation. Employers also need to know the date that the minimum wage changes, so that they can be ready to increase the pay rate of eligible employees.

What is the minimum wage?

The minimum wage is the lowest hourly wage that an employer can legally pay their employee. Employers are free to pay their employees more, but the law requires that employees cannot be paid less than the minimum. The minimum wage applies whether an employee is part- or full-time, paid an hour rate, commission, incentive, flat rate, or a salary. However, some industries and professions are exempt from the minimum wage provisions. All of these categories are further discussed below.

The minimum wage entitlements and exemptions in British Columbia are set out in the Employment Standards Act, RSBC 1996, c 113 (“ESA”) and its regulations. If your employer refuses to pay you at the minimum wage, you should contact us immediately.

What is the minimum wage in British Columbia in 2025?

General Minimum Wage Rate

On June 1, 2025, the general minimum wage which applies to most employees in British Columbia will increase from $17.40 to $17.85 per hour.

On the same day, the minimum wage will increase for specific categories of employees referred to below entitled to a “special minimum wage rate”.

Liquor Servers

The special rate for liquor servers in British Columbia was eliminated on June 1, 2021. Employees previously falling into this category are subject to the general minimum wage of $17.85 per hour, as set out above.

Live-In Camp Leaders

Employees who are live-in camp leaders are paid a minimum wage per each day or part of a day worked. On June 1, 2025, their daily rate will increase from $138.93 to $142.61 per day.

Live-In Home Support Workers

Employees who are live-in home support workers are paid a minimum wage per each day or part of a day worked. On June 1, 2025, their daily rate will increase from $129.62 to $133.05 per day.

Resident Caretakers

The minimum wage for resident caretakers is a monthly wage based on the number of suites in the building. For buildings with 9 to 60 residential suites, their monthly wage will increase from $1,041.80 per month, plus $41.74 for each suite to $1,069.36 per month plus $42.84 for each suite. For a building with 61 or more residential suites, their monthly wage will increase from $3,548.63 to $3,642.51 per month.

When a resident caretaker works for less than a full month, their wages are pro-rated based on the number of days worked.

How is the minimum wage in British Columbia in 2025 calculated for a class of employees?

Since 2023, the minimum wage in British Columbia has been calculated based on annual inflation. This calculation is set out in s. 16.2 of the ESA.

Is the minimum wage in British Columbia in 2025 still applicable to those who earn commission, a flat rate, or a piece rate salary?

Unless exempt under the ESA, for employees whose pay is based entirely or partly on commission, on a flat rate, or on a piece rate, the employee’s pay must amount to at least the minimum wage for each hour worked.

The minimum wage for farm workers, including those on a piecework basis, increased on December 31, 2024.

For more information on minimum wage or minimum employment standards in British Columbia, please contact our firm.

At Levitt LLP, we specialize in guiding employees through their rights and entitlements under the British Columbia Employment Standards Act. Our experienced team is committed to helping you understand any questions that you may have about employee compensation. Contact us for a consultation and take the first step toward protecting your rights and entitlements.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employees and employers to contact Levitt LLP directly to understand provincial employment standards better and seek legal advice to their questions.

At-Will Employment Canada: Know Your Rights

A common misconception in Canada is that employment agreements can be terminated by either the employee or the employer ‘at-will’. While ‘at-will’ employment contracts are rare in Canada, they are commonly seen throughout the United States. The close economic relationship between Canada and the United States means that occasionally, some Canadian workers are asked to sign ‘at-will’ employment agreements.

What Does ‘At-Will’ Employment Mean?

At-will employment is employment that can be terminated at any time without cause or providing any reason or notice of termination, so long as the termination was not done for an unlawful purpose, such as discrimination or retaliation.

The term ‘at-will’ stems from the fact that these employment relationships can be terminated “at the will” of both parties. Either party can choose to end this type of employment at any time, without cause or notice.

Is ‘At-Will’ Employment Legal in Canada?

No. ‘At-will” employment and ‘at-will’ employment contracts are illegal in Canada. In Canada, employees can only be terminated for cause or without cause. Courts will refuse to enforce ‘at-will’ employment contracts.

No Contracting Out of the Employment Standards Legislation

‘At-will’ employment is illegal primarily because of employment standards legislation, such as the Ontario Employment Standards Act, 2000, SO 2000 c 41, as amended (the “ESA”). Legislation like the ESA sets minimum employment standards that all employers must comply with, including by requiring employers to provide minimum amounts of notice of termination.

Employers cannot “contract out” of the ESA by limiting your entitlements upon a termination without cause to notice, pay in lieu of notice, or a combination of both, to less than what is guaranteed by the ESA. Employment contracts that are ‘at-will’ do exactly this by stating that employees will not receive notice of termination.

If you have an ‘at-will’ employment contract, you should contact our firm immediately.

If You Signed an ‘At-Will’ Contract in Canada, Can You Be Fired for No Reason?

No.

Canadian courts will not enforce ‘at-will’ employment agreements. Instead, courts will treat the contract as if it can only be terminated by reasonable notice or for just cause or for wilful misconduct,  duty, disobedience or wilful neglect of duty.

Reasonable notice of dismissal is essentially a ‘heads up’ from an employer that the employee’s employment will end on a certain date. ‘Pay in lieu of notice’ means that an employer does not want the employee to continue working during their notice period and will instead pay an employee the amount that they would have earned if they continued working for that period.

Most employees are entitled to notice (either under the Employment Standards Act  (“ESA”) or the common law), and this is usually based on how long an employee has worked for an employer—though other factors are considered at common law such as age, salary, and job title. Under the ESA, employees are entitled to statutory notice or pay in lieu of notice or a combination of both, plus statutory severance pay, if the employer has a payroll larger than $2.5M and the employee has worked for at least five years.

If your employment is terminated without cause and your employer does not provide you either notice of termination or pay in lieu of notice, you should contact our experienced team immediately.

What is common law reasonable notice in Ontario?

‘At-will’ employment contracts are unenforceable in Canada, even if your employer terminates you without cause and provides you with the minimum required notice under the ESA.

If you are terminated without cause and your employment contract is ‘at-will’, you are entitled to reasonable notice under the common law. Common law reasonable notice will almost always be worth much more than the minimum requirements under the ESA.

This is for several reasons; chief among them is that common law notice is measured in months, not weeks. Second, employers are only required to pay up to 8 weeks in ESA notice (not including ESA severance pay). Courts on the other hand do not have a prescribed limit like the ESA does.  Courts can award up to 24 months in notice and, in exceptional circumstances, have gone as high as 30 months of pay in lieu of notice.

If You Signed an ‘At-Will’ Contract in Canada, Can You Resign Without Notice?

In most cases, the answer is no. In Ontario, employees who resign without reason are required by the ESA to provide notice of their resignation. Employees who fail to do this are at risk of being sued for wrongful resignation by their former employer, although these cases are extremely rare and exceedingly difficult for the employer to prove.

If understanding the complexities of ‘at-will’ employment in Canada feels overwhelming, you don’t have to go through it alone. At Levitt LLP, we specialize in guiding employees through their rights and entitlements after their employment has been terminated ‘at-will’. Our experienced team is committed to helping you understand the nuances of ‘at-will employment’, without cause terminations, and severance packages. Contact us for a consultation and take the first step toward protecting your rights and entitlements.

Please note that this article is only to be used as general information and it does not constitute legal advice. We encourage employers and employees to contact Levitt LLP directly to better understand ‘without cause’ issues and seek legal advice to their questions.