Small businesses often don’t anticipate the many situations that can arise in an employer-employee relationship. They don’t have that foresight because, for the most part, they’ve never been through this sort of problem to know what happens and how to handle it.
“If you are an employer who has never handled a termination or if you are just starting out in the workforce, you are unlikely to know how the end of the employment relationship is going to unfold,” says Rishi Bandhu, Labour and Employment Law specialist at Bandhu Law. “It’s not until an employment issue becomes a costly distraction that those affected appreciate the practicality of ongoing legal advice.”
Bandhu says people may have different reasons for failing to consult with a lawyer, including cost, convenience and a misguided belief in one’s own legal acumen. Employment law is continually changing and it can be complex.
There is no one-size-fits-all solution to the myriad of issues that can arise. Here are the top reasons why prudent employers are relying on the benefits of ongoing counsel.
The true value of HR law advice
The beginning of an employment relationship is typically an optimistic time for both sides. However, far too many of these relationships unravel despite best intentions. That’s when it becomes apparent that better care should have been taken to ensure a strong employment contract was in effect, setting out expectations for the worker and defining the responsibilities of the employer, both during the relationship and at its conclusion.
Companies of all sizes should have ongoing access to an experienced employment lawyer. “I equate it to having a family doctor,” says Bandhu. “If you value your health, you get regular checkups and consult with your doctor when a problem crops up. The prudent person doesn’t ignore a health concern until it becomes serious enough to call an ambulance. It’s no different with your business. If you want a healthy bottom line, taking steps to avoid workplace issues only makes sense.”
A lawyer can provide guidance in all stages of the employment relationship beginning with employment contracts, particularly ensuring that termination clauses are valid and enforceable.
An employment lawyer can determine if workplace policies and regulations are current and consistent with legislative requirements, particularly workplace harassment and violence policies. If there are performance management issues, a lawyer can help document those concerns, preparing correspondence to employees that properly record the nature of the issue and give appropriate warnings. A lawyer can also offer advice on human rights accommodations in the workplace.
Regular Contract Review
A regular review of employment contracts is also important because legal expectations are constantly evolving. “Every employment lawyer has created a contract in the past few years that they believed was enforceable, but there have been recent court decisions to change that assumption,” explains Bandhu.
“For example, in Waksdale and Swegon North America Inc., a wrongful dismissal claim heard before the Ontario Court of Appeal in June 2020, the plaintiff successfully argued that his employment contract was not binding because the termination for cause provision was void.”
“The judgment meant most employment agreements in Ontario needed to be updated. You may well have such a contract which could put you in financial peril in a severance dispute.”
Employment contracts can appear airtight but it is not just how the agreement is structured that is important, as was discovered in Battiston v. Microsoft Canada Inc. In that case, an Ontario Superior Court justice found that even where there is clear wording that minimizes an employee’s entitlement to compensation at the time of dismissal, it may not be enforceable if the employer fails to bring the provision to their attention.
HR Advice vs. HR Legal Advice
Bandhu says the other misconception he’s encountered is the belief that advice from an employment lawyer is unnecessary if a company has a human resources department or independent consultants. “The difference is that with a lawyer, all of our advice is privileged. None of it can be disclosed. That’s not the case with HR representatives. Whatever advice they are providing to the employer about an employee can be disclosed in litigation. The solicitor-client relationship is the only one in the law that is truly privileged and confidential.”
The cost of retaining legal counsel is well worth it in terms of peace of mind and minimizing or avoiding liability.
It is also in the best interest of an employee to consult a lawyer, especially at the time of termination. Bandhu warns, “While a severance package may appear decent at first glance, an employment lawyer having dealt with countless termination situations will provide the necessary insight and advice to ensure that the package is fair at law.”
Getting advice at the outset of an employment relationship is valuable to new employees. I can give employees insight into their termination entitlements and any post-employment restrictions concerning confidential information and competition. That advice can avoid very costly mistakes that employees sometimes make prior to the end of an employment relationship.
If you are unsure about your legal rights, don’t leave it to chance. Regret can come at a high cost.
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