What to Keep in Mind When Employers Hire New Employees in Ontario
In Ontario, employment law governs the relationship between employers and employees, outlining various rights and responsibilities. However, employment law governing workplaces in Ontario is not all found in one place. In fact, workplace law is found in several statutes and common law. Understanding some of the key elements is essential for both employees and employers to ensure compliance with the law and avoid misunderstandings.
Hiring of Employees
Factors to Consider in Terms of Selection Criteria
Are there any legal requirements that apply when having a specific preference in selecting or hiring a new employee? How does discrimination law impact hiring processes?
Provincially and federally regulated employers are not subject to affirmative action laws. However, human rights legislation in each jurisdiction prohibits workplace discrimination based on any protected grounds. While protected grounds vary under provincial or federal human rights law, all jurisdictions prohibit workplace discrimination and harassment against particular people or groups of people on the basis of:
- race
- national or ethnic origin
- skin colour
- creed
- religion or religious belief
- age
- sex, gender, gender identity or gender expression
- sexual orientation
- marital status
- family status
- criminal records
- disability (both physical and mental)
The courts take human rights law in the employment context seriously, and do not shy away from expanding protection to certain classes under existing enumerated grounds. For instance, in Imperial Oil Limited v Haseeb, 2023 ONCA 364, the Ontario Court of Appeal held that an employer cannot discriminate against a job applicant by requiring prospective employees to provide proof that they are eligible to work in Canada. In other words, employer asking and requiring a potential employee to be “permanently eligible to work in Canada” (including job postings requiring Canadian birth certificate, citizenship certificate, or certificate of permanent residence) is unlawful discrimination.
Written Employment Contracts
Are written employment contracts mandatory?
While it is ideal for the protection of both parties, an employment contract is not required to be in writing. Terms can be established through express or implied oral agreements, and in some cases, through the parties’ conduct. Canadian common law implies certain employment terms that govern relationships in the absence of enforceable written agreements to the contrary, especially an employer’s right to provide reasonable notice of termination (or pay in lieu of notice), as well as the duty of good faith, honesty and fair dealing.
Can employers have employees sign fixed-term employment contracts?
In many Canadian jurisdictions, employment standards legislation exempts fixed-term employees from entitlement to termination notice (or pay in lieu) but typically only when the fixed term is of a specific duration. A fixed-term contract can also serve to limit an employee’s entitlement to common law reasonable notice of termination (or pay in lieu). However, it must be clear and unambiguous that the contract was intended to be temporary (this provision in an employment contract is called a “termination clause”). The longer the employment relationship, the less likely it is to be viewed as a fixed-term contract. If a fixed-term contract is terminated early, the employer may be required to pay out the remaining duration of the contract.
Probationary Period
What is the maximum probationary period permitted by Ontario employment law?
In Ontario, employment standards legislation set statutory probationary periods during which non-unionized employees may be dismissed without cause and without the requirement for termination notice (or pay in lieu). For instance, employees can be terminated without prior notice or pay in lieu of notice in their first three (3) months of employment.
An employer cannot extend the statutory probationary periods beyond those outlined above. Therefore, regardless of any contractual terms to the contrary, employees become entitled to statutory notice of termination (or pay in lieu) once these periods conclude.
Under Ontario common law principles, there is no implied right for employers to place employees on a probationary period during which an employee can be exempt from receiving common law reasonable notice of termination. As such, unless specified otherwise in the employment contract, an employee may be entitled to common law reasonable notice of termination even if their employment is terminated during the statutory probationary period.
Misclassification as Contractor or Employee
What are the primary factors that distinguish an independent contractor from an employee?
The Supreme Court of Canada has established a non-exhaustive list of factors to help determine whether a worker is an independent contractor or an employee. No single factor is conclusive on its own. These factors include:
- The level of control the employer has over the worker’s activities
- Whether the worker provides their own equipment
- Whether the worker hires their own helpers
- The degree of financial risk assumed by the worker
- The level of responsibility for investment and management held by the worker
- The worker’s opportunity for profit or loss
In addition, many jurisdictions under both statute and common law recognize “dependent contractors” – a classification that falls between that of an employee and an independent contractor. Dependent contractors have some, but not all, of the rights typically afforded to employees.
Conclusion
If you are an employer or employee in need of legal advice, such as facing a wrongful dismissal or constructive dismissal, it is crucial to consult with an experienced wrongful dismissal lawyer who can help assess your specific situation, review your severance package, and advise you on how to proceed. With the right legal guidance, you can ensure that your rights are protected and that you receive the compensation you deserve.
If an employee is unsure about whether they need to take a particular action in order to mitigate their damages, they should seek out legal advice.
Whether you need a severance package review, assistance with a wrongful dismissal claim, or legal advice regarding mitigation of damages, the team at Bune Law is here to help. Reach out to us today to discuss your case with an employment lawyer in Toronto.
Call for Employment Lawyer Consultation Today
If you were terminated from your employment with or without severance package, call today to discuss your options. As an employment law firm in Toronto, Bune Law has reviewed many severance packages and are skilled at negotiating improvements. You will review and get guidance on your severance package before you agree to sign any termination documents, and help ensure that your severance package is fair and reasonable.