Agnihotri | Anwar LLP is an established employment law firm providing legal expertise to both employees and employers in all aspects of employment law and human rights issues.  We are legal advisors to both individual and corporate clients, and focus on delivering strategic resolutions to workplace issues, as well as, providing our clients’ with powerful representation before courts & tribunals. 

Our lawyers provide representation, advice and opinion regarding a full range of human resource and workplace issues, including:

  • Termination and wrongful dismissal
  • Employment contracts and hiring
  • Employment Standards, Policies & Practices
  • Human Rights (Including workplace harassment & discrimination)
  • Performance Management & Discipline
  • Workplace Reorganization & Restructuring
  • Workplace Health & Safety

 

FOR EMPLOYEES

A person’s employment is fundamental to his/her sense of self-fulfillment and well-being.  It is no surprise therefore that encountering problems with work, including the threat of loss of employment, or actual loss of employment, can be an especially difficult time, full of legal, practical and emotional consequences. Not being fully aware of your rights during this stressful and emotionally charged time often further amplifies existing stress and unrest.  

Unfortunately, many clients, when they first approach us, are unaware of their rights and have been pressured into accepting unfair terms and conditions or unfair severance packages. In fact, sometimes our clients contact us after having been pressured into resigning from their positions and essentially waiving certain critical rights they may have had, prior to consulting with a lawyer about the dire ramifications of resignation. 

There are nuances, intricacies and details that one should be aware of prior to making any serious decisions when it comes to employment, or termination thereof.  It is very important when facing the threat of termination, or after having been terminated (or even when thinking about resigning), that you consult with an employment lawyer regarding your legal rights and options. At Agnihotri | Anwar LLP, our employment lawyers carefully listen to you and care about your concerns.  Understanding the sensitivity of the situation, we provide competent, timely and cost-effective advice and representation. 

We assist employees by providing advice & representation on a wide array of employment law issues, including:

Wrongful Dismissal & Termination of Employment

A dismissal is wrongful where an employer dismisses or terminates an employee without giving the employee notice of that termination, or where an employer wrongfully feels that there is cause for termination and thereafter terminates an employee for cause without giving notice of termination. What many people do not realize is termination without cause is lawful, if it is done correctly.  What this means is your employer does not have to have a reason to dismiss you.  It can dismiss you without any cause, as long as it does so in accordance with the law.  What is key to note about without cause terminations is that if you are terminated without cause, you are entitled to and must receive from your employer, notice of such termination.  This means that your employer must tell you ahead of time that they will be terminating your employment.  The rationale behind this is to afford you time to search for new employment.  The duration of notice required depends on the circumstances.  If an employee is not provided with proper notice of termination, a wrongful dismissal has occurred.  Thus, a termination without cause can become, but is not always, a wrongful dismissal.

Constructive Dismissal

Constructive Dismissal is a form of wrongful dismissal and occurs where an employer, without the consent of the employee, changes a fundamental and important term of the employment (such as wages/salary, tasks, hours etc.) and then forces the employee to either accept the changes or resign.  If you are facing such a situation, consult with a lawyer immediately, as you may be able to sue your employer for wrongful dismissal.

Termination of Employment for Cause

Your employer may terminate you for cause only in a certain set of circumstances.  What is important to know is that generally speaking, being terminated for cause is described as the capital punishment crime of employment law. 

When terminated for cause, the dismissed employee is not provided with notice of dismissal or a severance package.  In addition, the dismissed employee may lose eligibility to collect employment insurance benefits and may face difficulties in finding new employment.

Generally speaking, an employer has a high hurdle to get past to sufficiently establish that he or she had cause to dismiss an employee.  Courts only find cause to dismiss an employee if the employer is able to provide that the acts or omissions of the employee are so significant that the effect was that the employee’s misconduct or incompetence repudiated the contract of employment.  The employee’s misconduct must be incompatible with the employee’s duties or prejudicial to the employer’s interests.  Further, the employer must prove that the alleged conduct did in fact take place and that the conduct was sufficient to disrupt the employment relationship to the point where it could no longer continue. 

If you have been terminated for cause, there are certain things you should be aware of, such as what constitutes cause, whether your employer had the right to dismiss you for cause, who bears the burden of proof should you decide to sue your employer, what you would be looking at in terms of damages/remedies, and generally, what your rights and entitlements are.  If you have been dismissed for cause and would like to challenge your employers decision or you require further information on your rights and entitlements, feel free to contact Agnihotri | Anwar LLP. 

Mitigation and the Duty to Find Alternative Employment

Generally, the duty to mitigate requires an employee who has suffered a loss as a result of a breach of contract/termination to take reasonable steps to lessen or alleviate that loss.  This means that if you have been wrongfully dismissed, you have a legal obligation to take reasonable steps to attempt to find new employment.  

While there exists a positive duty to mitigate, how this duty applies varies from case to case depending on the circumstances.  For instance, the duty to mitigate does not mean that you are obligated to accept unreasonable offers, nor are you obligated to continue to work for the same employer if it would mean that you would be subject to harassment or vexatious behaviour.  

What is meant by the duty to mitigate and what constitutes the fulfillment and/or failure of such a duty, is largely fact specific and depends on the circumstances of your case.  If you have recently been terminated and are concerned or have questions about your duty to mitigate, contact Agnihotri | Anwar LLP.    

Human Rights, Disability and Accommodation

Under current Canadian law, employers are prohibited from discriminating based on any of the eleven grounds enumerated under s.2 of the Canadian Human Rights Act (“CHRA”). As such, employers have a duty to accommodate employees. 

Employers must, by law, accommodate employees who fall into the groups protected by the CHRA up to the point of undue hardship, taking into account health, safety and cost.  The employer must demonstrate that such a duty to accommodate has been fulfilled.  This is done by documenting the steps undertaken by the employer in considering and acting on the employees request for accommodation. 

Broadly speaking, accommodation requires a balance between the rights of an employee or candidate and the right of an employer to operate a productive workplace.  In contemplation of such a balance, there are certain limits on a duty to accommodate. For further information on your legal rights and entitlements with respect to the duty to accommodate, please contact Agnihotri | Anwar LLP.

Employment Benefits, including Maternity and Parental Leave

In Ontario, the Employment Standards Act provides eligible employees who are pregnant, or are new parents, with the right to take unpaid time off of work through pregnancy leave (for pregnant women) and parental leave (for mothers and fathers). 

Under the Employment Insurance Act, eligible employees are paid parental or maternity benefits through Employment Insurance (EI) during the period in which they are off of work on pregnancy or parental leave.  For further information on eligibility for maternity parental and/or sickness benefits, please feel free to contact Agnihotri Anwar LLP.  We are happy to assist you.

Employment Status: Employee or Independent Contractor

In recent years, due to globalization of trade, the emergence of new technologies, the volatility of international and domestic markets, and increased preferences for autonomy and independence, self-employment (including freelance work, consultant work and independent contract work) has been on the rise and become more prevalent in the workplace.  With this rise, the boundary between “paid employment” and “independent contractor” is becoming increasingly difficult to demarcate.  This ambiguity is problematic as each category carries with it distinct set of rights, obligations and repercussions. 

Employees in the federal jurisdiction labor relations system have certain protections afforded to them under Labour Standard and Health and Safety legislation, whereas independent contractors do not, as they are not considered employees. 

When disputes arise with respect to employment status, courts and tribunals have resorted to the common law and civil law tests to determine employee status. What is key to take note of is that each statue has underlying policy goals, so it may be possible that a worker may be held to be an “employee” for one law, but not for another.  Courts and tribunals have to take into account the particular policy objectives of the statute when determining employee/independent contractor status.  

For further information on the differences between the two employment status’s and what this categorization means for your rights and entitlements, please contact Agnihotri | Anwar LLP. 

Harassment, Bullying, and Violence in the Workplace

In 2009, the Ontario government introduced Bill 168, which amended the Occupational Health and Safety Act with respect to violence and harassment in the workplace.  Under this Bill, there is a positive obligation on employers to keep their workplaces free from bullying.  Courts and labour arbitrators have strictly enforced such obligations following its introduction. 

Under the Bill, “workplace violence” is separate and distinct from “workplace harassment”, with “workplace harassment" encompassing conduct or comments vexatious in nature against a worker in a workplace that is known or ought reasonably to be known to be unwelcome. 

“Workplace violence” means the exercise of physical force by a person against a worker in the workplace, causing injury to the worker, an attempt to exercise physical force that could cause injury and/or a statement or behaviour that is reasonable for a worker to interpret as a threat to exercise physical force that could cause injury. 

Bill 168 imposes a duty on employers to take precautions for the protection of an employee if there is a likelihood the employee may be subjected to bullying, either through harassment or violence, in the workplace. 

If you are experiencing harassment or bullying in the workplace, or if you would like further information on Bill 168, workplace harassment and/or workplace violence, feel free to contact Agnihotri | Anwar LLP.  

Whistleblower Protection

Often times an employee who alerts authorities, media or the public to alleged fraud, wrongdoing or illegal activities occurring their workplace is the subject of harassment by their employer.  Nevertheless, whistle-blowers remain entitled to protection from wrongful discipline, dismissal or harassment.  However, it is important for potential whistle-blowers to be aware of specific steps they may be required to take under the law before taking information public. 

Agnihotri | Anwar LLP provides advice and advocacy to employees whether potential whistle-blowers or employees facing discipline or harassment following blowing the whistle.  We provide guidance on the nature and timing of permissible disclosure, and the steps that one must take prior to making information public.  In addition, we assist in representing those facing retribution from whistle-blowing before courts and tribunals.

If you are facing discipline or harassment as a result of whistle-blowing, or would like further information on the requisite steps and procedures involved in making such information public, contact Agnihotri | Anwar LLP.   

Non-Compete and Non Solicitation/ Restrictive Covenants

For those who have lost their employment, the last thing they want to do is sit around for weeks or months waiting for new opportunities to present themselves.  Equally unappealing, if not more, is the prospect of potentially facing a law suit for setting up a potential competing business in breach of a Non-Competition Agreement. 

A Non-Competition Agreement is an agreement stating that the employee agrees not to work for or start a business that is similar to their employer's business.  

A Non-Solicitation Agreement is an agreement stating that the employee agrees not to approach and lure employees of the company into leaving the company for a new opportunity, or approach clients of the company for their business. 

In general, in order for a Non-Solicitation Agreement to be enforceable, the law requires that it be clear and unequivocal, as well as reasonable with a view to the employee’s knowledge, position and responsibilities.  Courts have generally held that Non-Competition Agreements conflict with public policy, insofar as they prevent persons from competing, which interferes with individual liberty and restricts open competition.  As a result, Non-Competition Agreements included in regular employment contracts are difficult to enforce.  Non-Solicitation Agreements are more widely enforced by the courts. 

For further information on Non-Competition Agreements and/or Non-Solicitation Agreements and how they apply to your specific situation, contact Agnihotri | Anwar LLP. 

Reasonable Notice and Severance Packages

Broadly speaking, employees who are non-unionized, who are dismissed without cause, are entitled to notice of that termination or pay in the place of notice (“severance”).  When an employee has been dismissed without cause, he/she is provided with a termination letter stating an offer of severance.  This is what your employer is willing to pay in return for your signing the release. 

In many instances, what is being offered is far from fair.  This is because unfortunately, many employees are not aware of their legal rights and entitlements, and blindly accept what is being offered to them.  It is surprising how many of our clients approach us after having signed such a release, who are surprised to hear their legal alternatives. 

Do not succumb to the pressures associated with termination of employment.  Call Agnihotri | Anwar LLP and let us assist you in obtaining the severance package you deserve.  We will review your situation, all pertinent documents, including any severance package offered and employment agreements you are subject to, and provide you with expert advice as it pertains to your specific set of circumstances, before you sign any severance packages or agreements. 

If your situation entitles you to certain rights and options that are not being offered or have not been disclosed to you, we are happy to negotiate on you behalf to ensure you are offered the right severance package and receive the notice you deserve. 

 

FOR EMPLOYERS

Owning a business is no easy task.  There are a number of laws and rules that you need to ensure you are in compliance with, or there can be severe consequences.  As an employer, it is important to be fully knowledgeable about all your legal obligations.  

At Agnihotri | Anwar LLP we assist business owners in protecting themselves from workplace-related disputes. We provide practical legal advice, opinion and representation to assist employers in maintaining a smooth operating and legally compliant workplace.  

Unfortunately, majority of our clients approach us after being served with a lawsuit, either for wrongful termination, health and safety issues, discrimination or another employment matter. We routinely represent employers in resolving such disputes, either through mediation or through representing you at court or before the Ontario Relations Board & Human Rights Tribunal of Ontario.  However, we find it to be far more productive to provide business owners with legal advice and opinion prior to the manifestation of the problem, as many employment law issues are completely preventable.  

As an employer, you have complete control in protecting yourself from such stressful, frustrating and costly claims, simply by speaking to a lawyer ahead of time to ensure you are aware of our rights, obligations and protections. 

We assist employers by providing advice & representation on a wide array of employment law issues, including:

Employment Standards Compliance

It cannot be overemphasized how important it is for employers to know the legislation and the potential consequences in failing to comply.  What may seem like a minuscule issue, can turn out to be quite costly, and it is important to contact a lawyer to ensure you are on the right track.  For instance, you are setting out to hire on some employees.  What about their lunches?  Do your employees get paid time off for lunch?  What about when an employee stays late to catch up with work?  Does that employee receive overtime pay?  What about hiring on an employee who becomes injured and can no longer perform their duties?  Or an employee who informs you that she is pregnant.  Do you know your obligations?

These are just a small fraction of the types of questions that you will encounter as an employee in a workplace environment.  It is important to have answers to each and every question, as the Employment Standards Act mandates compliance with basic minimum standards.  

At Agnihotri | Anwar LLP, our employment lawyers regularly work with individuals and businesses to help ensure compliance with employment legislation.  Whether you are being spot audited, require representation in a Ministry of Labour Complaint, or are starting on a new venture and require in-house advice of daily activities, we can help in making sure you are aware of your rights and obligations as an employer.  

Wrongful Dismissal Litigation

By law, an employer is permitted to terminate his/her employees from their job, so long as an advances warning or payment (known as severance) is provided.  What is disputed in such cases is not whether there was a right to terminate, but the amount of notice or pay in lieu of notice an employee is entitled to.  In determining this, there are a wide range of factors to consider, making the determination a lot less black and white.  And so it is not surprising, most employers and employees disagree on exactly how much notice or pay in lieu of notice is owed.  The factors include an employee's salary, age, tenure as well as entitlement to all non-discretionary payments that he/she earned while employed.  

Termination for Cause:

While an employer can dismiss an employee without any reason, the law becomes a little tricky where an employee is being terminated for cause (ie. employee misconduct).  Where an employee is terminated for cause, his/her employer is not required, by law, to provide the employee with notice or severance.  In majority of cases, where an employee is terminated for cause, he/she will likely bring a claim for wrongful dismissal putting forth the argument that:

  • the reason for their dismissal (ie. misconduct) does not warrant the employer's decision to withhold their pay
  • the employer's decision to terminate for cause was made in bad faith 

If you are an employer, wrongful dismissal cases can be a frustrating distraction.  If you have received a demand letter, or are being serviced with a Statement of Claim, it is important to take it seriously and respond in a time effective manner.  

At Agnihotri | Anwar LLP, we assist employers who are in receipt of such claims, to assess their liability, engage with the other side and depending on certain factors, either resolve the dispute or file a strong response.  

Occupational Health & Safety

Human Resources & Workplace law is a vast area that is often changing and developing.  Of all areas, Occupational Health & Safety has seemed to have made the most changes in the recent years, expanding from a set of rules that helped prevent accidents & injuries in the workplace, to now creating new guidelines & protections, such as the new requirements around workplace violence & harassment, as well as new rules expanding protections for interns. 

In Ontario, the Occupation Health & Safety Act applies to almost every business.  This legislation stems from a system which makes

 The legislation is driven by an internal responsibility system that makes everyone at work, from general labourers to CEO's, responsible in some shape or form for safety in the workplace.  In addition, businesses are subject to various obligations, such as the requirement to implement a joint health and safety committee, as well as posting obligations in the workplace.  

Our employment lawyers work with you and your business to help ensure you have the information you need to meet health and safety legislation requirements, improve workplace safety and/or resolve any disputes that may arise.  

Employment Contracts

If there was ever a reason for a business owner to consult with a lawyer, this would be it. Drafting a legally recognizable and enforceable employment contract is the most important way to protect your interests.  At the end of the day, where an employment contract is in place, the dispute eventually comes down to the language that was used in the contract to the extent that it is compliant with minimum standards legislation and has been expressed an a clear and unequivocal manner.  Unfortunately, many business owners underestimate the importance of the employment contract, not realizing the ways in which the contract can be relied upon and used against you years later to curb your legal rights.  Any ambiguity in the contract tends to be interpreted in the favour of the employee and therefore can, and often does, result in significant liability for your business. 

At Agnihotri | Anwar LLP, we highly recommend consulting a lawyer to carefully and strategically draft an employment contract that is representative of your intentions and ensures your interests are met.  Our lawyers are familiar with the routine disputes that tend to arise when it comes to language of employment contracts and what contracts courts consider enforceable versus the type of language courts consider enforceable.  We use our knowledge and expertise to advise employers on employment offers and updating employment contracts to reflect changes in the employees position and/or changes in the law, with special emphasis on drafting an enforceable termination clause, as well as a non-solicitation/non-petition clause. 

Absenteeism & Attendance

Having a consistently absent employee can be detrimental for a business.  Many employers believe that absence from work is sufficient cause to justify termination, however, it is important to be knowledgeable about the exact details and nuances surrounding the law when it comes to employee absenteeism, as the failure to handle the issue cautiously can expose your business to discrimination / constructive dismissal claims.  

For instance, absenteeism in and of itself is not always sufficient to warrant termination or changes in schedule.  There is a difference between absence due to a legitimate reason, such as health (innocent absenteeism) and absence due to unreliability and carelessness (culpable absenteeism).  Another intricacy that employers must pay attention to is the type, degree and duration of the absence.  Employer's have a duty to accommodate their employees to the point of undue harm.  Thus, employers must be careful to do their due diligence and ensure they are behaving reasonably.  

Agnihotri | Anwar LLP routinely assists employers in dealing with employment related issues, such as how to deal with employee absenteeism.  we advise employees of their responsibilities, assist in developing creative ways to deal with the issue and offer day-to-day advise and opinion to ensure safety in the workplace.  

It is absolutely crucial that you contact a lawyer prior to dismissing an employee who is on medical leave.  Even if you have a valid reason for doing so, this does not absolve you of exposure to liability. 

Human Rights Compliance

At Agnihotri | Anwar LLP, Human Rights Law is one of our key specialties.  As such, we know all too well of thee various ways in which Human Rights issues can present themselves.  

Under Ontario Human Rights legislation, employers are required to provide a harassment & discrimination free workplace environment, and to accommodate the needs of their employees (on the basis of physical disability, mental disability, religion, sex etc.) to the point of undue hardship. 

Employee Termination

Terminating an individual's employment is never an easy decision, no matter the cause or reason. Whether due to economic pressures or poor performance, such a step may nevertheless be necessary to take as an employer.  It is at the point of terminating employment when you may become exposed to potential liability.  

This liability can take various shapes and forms, including dispute over severance entitlement, or allegations of discrimination. The method you undertake to carry out a termination then becomes paramount.  These methods will vary depending on various underlying circumstances.  

In Ontario, the rules set out in the Employment Standards Act govern the termination process and provide guidance on how the process should take place.  At Agnihotri | Anwar LLP, our lawyers help employers and businesses navigate through these rules and assist in ensuring compliance by providing strategic and proactive advice to help avoid any potential legal issues in the future.  

Human Resources

The most effective means to avoid liability and create a productive and positive environment int he workplace is through proactive management of employees.  

Agnihotri | Anwar LLP provides legal services to businesses with respect to general day-to-day human resources functioning, such as advising on best practices, drafting documentation, advising on and implementing performance improvement plans, advising on how to carry out employee discipline, and responding to employee concerns/complaints.  

Harassment, Workplace Conflict & Violence Prevention

One of the biggest challenges in the workplace is the management of interpersonal conduct.  This is further complicated by various laws - common law and statutes alike - such as human rights and health and safety legislation - that create various requirements and duties for employers surrounding harassment, violence and other forms of offensive or inappropriate behavior.  

When a complaint is brought before a court or tribunal, the conduct is not the only factor that is considered when fashioning remedies or ordering an award.  The courts/tribunals will also review how management responded to the conflict/complaints and consider the overall effect of the work environment on the complainant.  

Depending on the particular facts of the case and the nature of the inappropriate conduct, an employee may be entitled to compensation for the violation of statutory rights or for emotional distress suffered, and in some cases, to damages for constructive or wrongful dismissal, among others.  

It is important as an employer to become familiar with the right legislation and its applicability to you and your business.  Contact us to learn about how to prevent and/or respond to any issues that you may be facing.

Privacy

Over time, issues surrounding privacy have become more frequent and increasingly challenging.  In recent years, we have seen the introduction of various privacy-oriented statutes. The legislation applies to different employers differently, but generally speaking and over time, employers are becoming increasingly subject to such privacy-related rules.  

Privacy issues may arise in various contexts, such as:

  • e-mails & internet use
  • video surveillance
  • release of medical information
  • background checks

In some instances, there are certain obligations on employers to establish policies surrounding privacy.  Having an effective policy in place, that adequately addresses the protection, handling, use, storage and disposal of personal information of individuals is extremely important, not only in helping to avoid the commencement of legal claims, but also in helping to provide a defense for such claims.  

At Agnihotri | Anwar LLP, our experienced lawyers frequently review and draft privacy policies to ensure compliance and provide advise to employers regarding a full range of privacy related issues.