Labour & Employment
The laws regulating the workplace are complex and balance the need for innovation, efficiency and the protection of employees. Executives, managers and human resources professionals must cope with constantly changing legislation and jurisprudence affecting the employment relationship. They must also deal with the increased expectations of employees/unions and the many misconceptions concerning employee entitlements and rights.
At Torkin Manes, the legal advisors in our Labour & Employment Group offer prompt, practical and proactive advice. We are an extension of, and provide business-minded support to, human resource and labour relations professionals for various types of organizations. Workplace issues are varied, whether they be union matters, harassment, workplace accidents, mass restructurings. Regardless of the matter, our team understands the urgency of workplace issues and can assist in effectively navigating through the legal complexities while identifying practical steps to solve the issues and mitigate risks.
We take a proactive approach. We carefully and critically review contracts, collective agreements and workplace policies, as well as hiring and general staffing practices to ensure that legislation and best practices are followed. We have expertise in advising clients on the Employment Standards Act, 2000, the Human Rights Code, the Occupational Health and Safety Act, the Workplace Safety and Insurance Act, the Labour Relations Act, 1995, the Canada Labour Code, and other labour- and employment-related legislation.
When a dispute arises, whether it be a wrongful dismissal, a union grievance, a discrimination claim or a wage and hour dispute, our lawyers are skilled at assessing which process is most effective depending on the circumstances and can capably represent clients in any type of dispute resolution process regardless of the forum.
We represent clients in a wide range of industries including, health care, social and community services, hospitality, long-term care and retirement, manufacturing and distribution, construction, transportation, education, professional services, financial services, technology, automotive, retail, and employers in the private sector and public/broader public sector.
While the relationship between a trade union and an employer can be complex, it does not need to be adversarial or zero sum. We understand the unique dynamic at play and strive to ensure that businesses continue to operate efficiently and with terms and conditions of employment that allow employers to be viable and competitive in the marketplace. Our clients rely on us during collective bargaining and in the general administration of their collective agreements. When a dispute arises, we represent our clients before grievance arbitrators and the Ontario Labour Relations Board, including in respect of certification applications, unfair labour practices and sale of business/related employer matters.
In the event of a breakdown in the collective bargaining process, we have the experience and ability to mobilize and respond to a potential strike/lockout, which may include picketing. When strike/lockout is prohibited by law, such as in essential services sectors, we have considerable experience in representing employers before interest arbitration boards.
For non-union employers, we have extensive knowledge and experience to guide employers through all stages of a union-organizing drive, from the onset of the drive up to a vote of the employees and the aftermath.
Human Resources Support
As the duties and responsibilities of human resources professionals are multifaceted and constantly evolving, one of our key roles is to provide them with a consistent and dependable resource. This often involves providing timely advice on the day-to-day issues impacting any HR Department, such as attendance management, requests for accommodation, health and safety compliance, employment standards compliance, offer letters, policies and procedures and separation packages. However, now more than ever, our lawyers act as trusted advisors on workplace issues that extend beyond the law to ensure that human resources are working smoothly and adopting reasonable processes with employees that will maximize productivity and staff morale.
Employment standards legislation creates a multitude of very specific minimum standards for terms of employment, ranging from minimum wage, vacation, overtime pay, maternity, parental and other protected leaves of absence, and termination of employment. The employment standards legislation in Ontario has become increasingly more complicated, constantly changing, often with statutory provisions that are counter-intuitive and littered with tricky pitfalls.
We provide employers with timely advice on compliance with all minimum standards under the Employment Standards Act, 2000. We also represent our clients in defence of complaints made under the Act, while making every effort to achieve the most desirable outcome possible under the circumstances.
Terminations of employment can present some of the most costly decisions that an employer can make. We help employers determine whether a termination is with or without “cause”, and assess the anticipated notice and/or monetary obligation associated with the decision and the most effective means of implementation. We also help employers prepare relevant termination documents and effective releases of liability. When disputes arise, we skillfully assess the circumstances and guide employers to find the best possible resolution process that will yield the most favourable outcome possible.
Contracts, Collective Agreements and Policies
Expertly prepared employment contracts are one of an employer’s most effective tools to minimize risk and mitigate liability.
Employers rely on our expertise when establishing employment contracts that are enforceable and compliant with current legislation and recent judicial decisions. We keep our clients up-to-date on relevant changes to the law that might affect the enforceability of employment agreements and review their existing contracts, as needed, to ensure they are as current as possible. We also advise on what are common or ‘market’ terms, depending on the industry.
We help employers create and update their employment policies and manuals so they are compliant with all statutory requirements, including obligations under the Employment Standards Act, 2000, the Human Rights Code, the Occupational Health & Safety Act and the Accessibility for Ontarians with Disabilities Act.
Employers who operate their businesses in a unionized environment must ensure they are working with collective agreements that allow them to continue to operate their businesses in an efficient manner. Our lawyers provide counsel to employers in the negotiation and administration of their collective agreements with the union. We ensure to keep our clients informed of all current legislative changes or arbitral trends that may impact their collective agreements.
Health & Safety
We advise employers on compliance matters with the Occupational Health and Safety Act and the Workplace Safety and Insurance Act, including the creation and maintenance of health and safety committees, the safety obligations of employers, owners and constructors, and the duty to investigate alleged or suspected workplace harassment or violence. We also represent employers in the defence of both complaints and provincial prosecutions, making every effort to achieve the most equitable resolution or outcome possible.
The Human Rights Code prohibits discrimination and harassment on a wide variety of grounds. We advise employers on all issues that arise under the Code, including alleged or suspected discrimination, harassment and prohibited retaliation. We defend employers in litigation and other proceedings before the Human Rights Tribunal.
When employees are transferred from one business to another, the liabilities assumed are significant. After all, a business is only as strong as the people in it. Whether an asset sale, share sale, merger, or any other business transaction or reorganization, members of our team support our Corporate Group in ensuring the efficient transfer of employees in the context of the sale of a business. This includes appropriate representations and warranties in any purchase agreement, a review of employment contracts and policies, and advising on any material workplace risks that may impact the viability and price of the transaction.
As training of staff is a legal requirement under workplace legislation, our team is equipped to support our clients with this obligation. Moreover, employers often train subsets of employees to maximize productivity and minimize risk. We attend client sites and present both legally required training and other more focused training on a broad range of topics, including health and safety, human rights, union avoidance, collective agreement administration and performance management.
We advise employers on all matters relevant to the hiring process, including background and criminal record checks, matters of “classification” between independent contractors and employees, compensation and non-discrimination training in hiring. We also help with the preparation of effective and binding employment contracts, including the custom drafting of termination and restrictive covenant provisions.
Employees with specialized knowledge of an employer’s business and clients can pose a material risk to the business when they leave. The ability of employers to rely on restrictive covenants and enforce them when necessary is an important tool to protect the business. We help employers draft customized restrictive covenants that are compliant with applicable legislation and are as likely to be enforced as possible. We also enforce or defend against such covenants in litigation.
Oftentimes, employers will require a neutral third party to investigate accusations in the workplace. Our lawyers have experience acting as independent workplace investigators, including in respect of harassment and bullying complaints both in the private sector and public sector (whether unionized or not).