Services

A Workplace Law Office is a legal practice focused on employment and contract law. Below you will find brief explainations of many of the areas in which we specialize:

Wrongful Dismissal

It is important to remember that an employer may terminate an employee at any time, on condition the employer provides the employee with enough notice to find another job, or provides pay in lieu of notice. The notice period must be a reasonable period for that individual to find another job. There is no set formula for calculating a reasonable period of time and each case is assessed upon its individual circumstances.

Employers able to prove just cause are not required to provide pay in lieu of notice.

Every employee has the right to demand the opportunity to obtain legal advice before agreeing to or accepting pay in lieu of notice.

Constructive Dismissal

Constructive dismissal occurs when an employer makes a fundamental change to the terms or conditions of the employment contract without providing reasonable notice to the employee. Such action frustrates the contract of employment by the employer, regardless of whether the employer desired to maintain the employment relationship. In such cases, the employee can consider the contract as wrongfully terminated and resign, creating an obligation on the employer's part to provide pay in lieu of reasonable notice." [Farber v. Royal Trust Co [1997] 1 SCR 846 at paragraph #34.]

A large portion of our practice is in the field of wrongful and constructive dismissal actions.

Sexual Harassment

"Sexual harassment is a form of discrimination based on sex. It occurs when a person is disadvantaged in the workplace as a result of differential treatment in the workplace. It is an unwarranted intrusion upon the sexual dignity of a person. It consists of acts that are unwarranted, unsolicited, and unwelcome. It can be overt or subtle. Even if the nature of the harassment is not physical, it can still be considered to be sexual harassment if it creates a poisoned environment, even if there is no economic consequences such as loss of one's job, loss of seniority, or economic consequences of a similar nature. It is also clear that even if it might be considered that what has occurred is sexual banter, common in the workplace, if a person finds it all objectionable and makes it known in clear and precise terms that such actions are not acceptable to such person, then that is the standard of behaviour that is established vis-a-vis that person." [Sexual Harassment in the Workplace - Third Edition. Page 119].

Victims of Sexual harassment are often traumatized by the experience. It is difficult to come forward and tell an embarrassing story which often includes some form of invasion of a person or a persons dignity. We understand the emotional strain and empathise with the victim to make the process as easy as possible under the circumstances. Many victims are intimidated by the process. We have the expertise and understanding to work with you in this difficult situation.

We also represent those who have been unjustly accused of sexual harassment in the workplace.

Severance Package Assessment and Negotiation

Severence packages are often used as a means of avoiding litigation and ending the employment relationship amicably. These packages may consist of a lump payment, or of a series of payments disbursed over a set period. In some cases, severence packages will provide for things like continuation of benefits, relocation counselling, pension bridging, referenced letters, nondisclosure of confidential information, return of employer property, payment of fixed amount for financial services, or other terms and conditions.[Executive Employment Law, LEXIS-NEXIS Butterworth's, 16.59]

Pension and stock option considerations often form the largest concern in severance packages and should be reviewed by a professional before any severance agreements are signed.

Employment Contract Assessment and Review

Written employment agreements offer many advantages, but the most obvious is that they protect both parties to the agreement by reducing misunderstandings.

A well-drafted employment agreement clearly states the obligations and rights of both parties. This helps to reduce the uncertainty which is often at the root of litigation. Another advantage is that it provides a record for future management personnel of the conditions of employment agreed to by the parties when they entered into or modified their employment relationship. However, the parties must be careful not to agree to terms that they do not intend to respect.[Executive Employment Law, LEXIS-NEXIS Butterworth's, 11.1]

Employment contracts can often be lengthy and difficult to understand.

Employment contracts should be reviewed by a professional before signing.

Non-Competition Agreements / Covenants

Non-competition clauses restrict the executive's legal right to compete following the termination of the employment relationship. Employers often require a non-competition agreement when the hiring of a key employee by a competitor has the potential of damaging the employer's business, due their knowledge of the business and its customers.

Some courts have held that in order for a non-competition clause to be valid, the employee must receive consideration in exchange for his undertaking not to compete...in all Canadian provinces, the scope of the non-competition clause must be reasonable.

... The purpose of a non-competition clause must be limited to the protection of the employer's legitimate business interest. This implies that the covenant should target only those executives whose knowledge of the employer's business could damage the employer's position in the market if the executive becomes a competitor with his or her former employer. [Executive Employment Law, LEXIS-NEXIS Butterworth's, 11.16, 11.18.1, 11.18.1.1]

Privacy Legislation and Issues in the Workplace

The Federal Personal Information Protection and Electronic Documents Act (PIPEDA), regulates how private sector organizations (including associations, partnerships, persons, and trade unions) may collect, use or disclose personal information in the course of commercial activities that fall within the federal jurisdiction. The Act also applies to personal information about employees of organizations that the organization collects, uses, or discloses in connection with the operation of a federal work, undertaking or business. PIPEDA permits the collection, use or disclosure of personal information by these organizations "for purposes that a reasonable person would consider appropriate in the circumstances." [Privacy in Employment by Kris Klein and Vivian Gates. Thomson Carswell Ltd. 2005, 1.2.2, page 3-4]

"The Alberta Act [The Personal Protection Information Act] was determined to be substantially similar to Part 1 of PIPEDA.

The purpose of the Alberta Act is to govern the collection, use and disclosure of personal information by organizations in a matter that recognizes both the right of an individual to have his or her personal information protected, and the need for organizations to collect, use or disclose personal information for reasonable purposes." [Personal Information Protection Act 2007 Edition, British Columbia and Alberta Quick Reference. Page 167.]

Pregnancy and Maternity Leave

The legal protections available to today's employees with pregnancy related issues, can be found in employment standards and human rights laws.

"Rather than proceeding with an employment standards claim or a human rights complaint, an employee may commence a civil action for wrongful dismissal damages as a result of her termination from employment. Such a claim would generally be for payment in lieu of the reasonable notice period that the employee ought to have received when she was terminated. Added to this may be a claim for punitive and aggravated damages." [Pregnancy, The Workplace, and the Law, by Melanie Manning. Canada Law Book, 2003. Page 211.]

Drug and Alcohol Testing

Drug and Alcohol Testing is a relatively new issue that is continually being defined as new cases come before the courts and Human Rights tribunals. As more and more cases are heard, the rights and obligations of both employees and employers become more well defined. At this point in time, there are no yes/no answers or solutions regarding the legality of alcohol and drug testing, and each case must be evaluated on its individual circumstances.

Intentional Infliction of Mental Suffering

Persons may sue for damages for mental suffering caused by others. Often, mental and emotional suffering does not necessarily have to be so severe that it can be diagnosed as mental illness. Mental suffering includes difficulties such as emotional distress, mental suffering or mental anguish, but it may also include emotional reactions such as fright, nervousness, grief, worry, mortification, shock, humiliation and indignity, in addition to physical pain. However, the court may require proof that the suffering amounts to more than mere minor upset.

[Emotional Consequences of Personal Injury, Second Edition. Butterworths, 2001. Page 42]

For some time, courts have compensated plaintiffs for psychological injury when it has been precipitated by physical injury. The courts have also awarded damages to victims for mental suffering caused intentionally by the wrongdoer. As early as 1897, in the case of "Wilkinson v. Downtown," an English court awarded damages to a plaintiff who suffered nervous shock after the defendant told her, as a practical joke, that her husband had been hurt in an accident. Canadian courts have long since recognized this tort, known as intentional infliction of mental suffering.

In addition, punitive damages are available if the conduct of the party constitutes a separate actionable wrong. Punitive damages where conduct is deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. Where the employer's conduct in dismissing the employee amounts to an independent cause of action causing harm to the plaintiff, the plaintiff may recover in aggravated damages. Finally, where the employer's conduct is something less severe but still amounts to bad faith or unfair dealings, the employee may recover damages through an extension of the notice period.

Intangible elements such as pain, anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem, loss of faith in friends or colleagues, and similar matters that are caused by the conduct of the defendant have all been categorized as aggravated damages." [Emotional Consequences of Personal Injury, Second Edition. Butterworths, 2001. Page 43]

Bonuses

Bonsuses, whether paid as a flat amount or as a percentage of sales or profits, may or may not be considered a vital of an executive's pay. In most casees, if the bonus is an important part of the wage structure, it will be a legal term included in the employee's contract.

If bonuses are regularly received, they will likely be considered part of the employee's salary. In such cases, "payments of bonuses can establish a contractual basis to claim the bonus as a right." [Executive Employment Law, LEXIS-NEXIS BUTTERWORTHS 7.39/7.40]

Stock Options

Some employers provide their employees with the right to purchase company stock. Others provide "phantom stock plans" which are similar to stock plans except that they do not give a proprietary interest in the corporation. The phantom stock plan is a monetary incentive plan in which the monetary award is determined in accordance with a formula based on actual stock prices and dividends.

Generally, a stock purchase or option plan forms an integral part of the wage structure. Depending on the wording of the plan and whether it includes wording giving discretion to the employer to amend or discontinue the plan, the employer may or may not unilaterally make significant changes which would affect a beneficiary of the plan. If a stock option scheme is offered during employment, this constitutes an inducement to executives to continue in their employment. By continuing their employment, they accept what constitutes a unilateral contract making the stock option enforceable. [Executive Employment Law, LEXIS-NEXIS BUTTERWORTHS 7.52/7.53]

Pensions and Retirement Income

"Claims by employees for pension benefits after termination from employment have been met with success in the courts. In Mosier v. Linden-Alimak Inc., an employee was dismissed without cause after 20 years of service to the company. The employee claimed for loss of future benefits under the pension plan. The court allowed the claim, finding that an implied term of the employee's pension plan was that employees terminated without cause prior to retirement age are entitled to a pension calculated on full past service." [Executive Employment Law, LEXIS-NEXIS BUTTERWORTHS 7.55/7.58]

Unions and the duty to represent fairly

If you feel that your Union has failed to represent you fairly or if you are unsure of your position within the Union, feel free to contact our office and we will do our best to assist you in moving forward with your grievance.

Illness in the workplace

An employer has a duty to accommodate an employee during a period of illness providing the illness does not frustrate the contract.

Short and Long Term Disability Claims

It is often difficult to obtain disability payments from the insurance company. A Workplace Law Office can use its experience extracting disability payments from the insurance company and ensure you receive the coverage to which you are entitled.

At A Workplace Law Office, we understand how even small issues in the workplace can result in wide ranging and long lasting effects on all aspects of your life. We consider it to be part of our function to assist with these effects where possible or guide you to a professional that can. We work closely with our clients towards reaching the best possible solution with consideration to all factors in your life.

New clients are always welcome and not restricted to the list above. If you have any questions about whether or not we have the expertise to handle your file, please contact our office. Even if our services are not relevant to your situation, we will do our best to refer you to a relevant organization.