Windsor-Essex County Employment Litigation Lawyers Representing Employers

Employment disputes can arise in several circumstances, particularly if a business is undergoing a period of reorganization, growth, or other form of change. Some disputes can be avoided through proactive legal counsel and carefully-crafted agreements and policies. Others, however, may happen regardless of an employer’s best efforts and can create operational disruptions and financial risk.

Willis Employment Law provides experienced, knowledgeable representation to employers of all sizes and in any industry across Windsor-Essex County and the surrounding areas. The firm’s talented employment litigation lawyers skillfully advocate for employers in a variety of disputes, including wrongful dismissal and constructive dismissal claims, human rights complaints, and employment standards claims.

Employment Litigation in Ontario – A Glossary of Terms

In addition to obtaining the guidance of a skilled employment litigation lawyer, understanding the terminology commonly involved in employment disputes can help employers navigate the complex litigation process.

Constructive Dismissal

Constructive dismissal is a form of wrongful dismissal wherein an employee, although not formally terminated, is effectively “pushed out” of their job. Constructive dismissal may occur when an employee’s working conditions are unilaterally altered in a way that makes it unbearable or unreasonable for them to continue working for the employer. Some employer actions that may give rise to liability for constructive dismissal include (but are not limited to):

• Changing the employee’s work hours, work shifts, or type of employment (i.e. from full-time to part-time/casual);
• Adding job duties to the employee’s role without adequate additional compensation;
• Reducing an employee’s compensation (salary, bonuses, or commission);
• Removing job duties or demoting the employee’s position or seniority;
• Unilaterally changing the employee’s work location, requiring a relocation;
• Failing to address workplace harassment or unsafe work conditions that pose a risk to the employee’s health or wellness; or
• Harshly disciplining an employee without employing progressive discipline (for example, performance management).

Independent Contractors (vs. Employees)

Independent contractors are workers who are not considered employees under employment laws. As a result, they are not entitled to the same benefits or notice provisions as set out under the Employment Standards Act. Independent contractors enjoy other freedoms, for example:

• More control over their working conditions and hours and ownership of work tools and supplies;
• The ability to work for multiple clients at the same time; or
• Eligibility for certain tax benefits, deductions and write-offs not available to employees.

Misclassifying an employee as an independent contractor can have serious legal and financial consequences. Even having an independent contractor agreement in place may not, in some cases, be determinative of whether a worker is an independent contractor (and therefore not entitled to notice or benefits under employment standards laws) or an employee. Courts can review the nature and circumstances of the worker’s job to determine what kind of work or employment arrangement was in place.

Restrictive Covenants

Restrictive covenants are terms in an employment contract and/or severance agreement restricting an employee’s future employment options. Two common types of restrictive covenants are non-solicitation clauses and non-competition clauses. If not used correctly, these clauses may not withstand judicial scrutiny and can lead to costly court awards against an employer.

Non-Competition Clauses

A non-competition clause (or “non-compete clause”) limits the type of work an employee can look for after leaving their employer. In the past, non-competition clauses have been a common way for employers to prevent former employees from leveraging their skillset and knowledge to join a competitor’s business (or start their own competing enterprise).

Courts have been wary of overreaching non-competition clauses given the serious barrier they can impose on an employee’s ability to use their own skills and experience to work and earn a living. In recognition of this concern, the Employment Standards Act was amended in late 2021 to prohibit non-compete clauses entirely, except in chief executive employment contracts or contracts relating to selling a business.

Non-Solicitation Clauses

A non-solicitation clause prevents an employee from contacting or soliciting business from the employer’s clients once the employee has left their job. The employee may also be restricted from soliciting the employer’s staff or vendors. While non-solicitation clauses are legal under the Employment Standards Act, courts have generally required them to balance the employer and employee’s interests fairly. As a result, these clauses should be reasonably restricted in their duration and geographical boundary after the employee’s employment ends.

Wrongful Dismissal

Wrongful dismissal occurs when an employee’s employment is terminated without providing proper notice (or pay in lieu thereof). In Ontario, the minimum amount of notice for non-unionized employees is set out in the Employment Standards Act. However, depending on various factors such as an employee’s seniority, length of service, and skillset, they may be entitled to a higher amount of notice under established case law.

Wrongful dismissal claims may not be limited to the amount of notice owing to an employee. They may include claims for unpaid vacation pay, benefits, pension entitlements, or any other right owed to an employee under the Employment Standards Act or their employment contract. A wrongful dismissal claim may also include aggravated or punitive damages relating to bad faith conduct on the part of the employer concerning the method of termination.

Dismissal “For Cause” (or “With Just Cause”)

Dismissing an employee “for cause” means they were terminated without legal notice because they committed some egregious wrongdoing or breach of their employment contract. The breach must have been so serious as to consider the employment agreement effectively terminated by the employee.

It can be challenging to prove an employee deserved to be dismissed for cause. If the employee is dismissed for cause without adequate grounds, the employee may have a claim for wrongful dismissal. Courts can additionally penalize the employer for improperly alleging cause for dismissal through aggravated or punitive damages.

Willis Business Law Provides Top-Tier Employment Litigation Advice for Windsor-Essex Employers

The above issues are a small representation of the myriad of disputes that can lead to employment litigation. Consulting with a skilled employment lawyer, such as those at Willis Business Law, helps employers protect their rights and ensure they are not vulnerable to liability under employment legislation and case law.

The employment litigation lawyers at Willis Business Law are dedicated to the success of businesses in Windsor-Essex County and the community at large. Using its wealth of experience serving large and small employers, including public and private sector institutions, the firm advocates for Windsor businesses and deliver results in employment disputes of any complexity. By working collaboratively and developing dynamic litigation strategies, the employment law team at Willis Business Law has developed a reputation for consistently exceeding client expectations.

Willis Business Law is based in Windsor’s financial district, overlooking the beautiful Detroit River. Conveniently located close to the courts and various government offices, the firm proudly provides top-tier business law, employment law, labour law, and mediation services across Windsor-Essex County. To book a consultation, please call 519-945-5470 or reach out online.