Employment Law vs Labour Law: A Brief Explainer

While the terms labour law and employment law are often used interchangeably, they are two distinct areas of Canadian law. To be fair, both labour and employment law are concerned with similar issues regarding the safe and equitable running of the workplace. However, there are some key differences between the two. Below is a brief overview of the two fields of law, labour law and employment law, and some of the differences between them.

What Is Labour Law?

Labour laws deal with collective bargaining, organized labour and unions. They govern the relationship between businesses and unions. In Canada, labour laws regulate the rights and obligations of trade unions and their members and address such issues as labour strikes and union organization disputes.

Unionized workplaces are governed by legislation such as the Ontario Labour Relations Act and the Canada Labour Code.

What is Labour Law - Labour Law Canada - KCY at LAW

What Is Employment Law?

In contrast, employment law is concerned with the employer-employee relationship. This means employment law deals with individual employment contracts and the rights of employers and employees as individuals.

Minimum wage, leaves of absence, hours of work, vacation entitlements and notice periods for termination are all governed by employment law. Employment laws also regulate employers’ obligations regarding the health and safety of their employees with regards to everything from physical hazards to discrimination and harassment.

The main piece of employment legislation in Ontario is the Employment Standards Act. This ESA was recently overhauled in 2016 which introduced a raft of new changes to the workplace which employers and employees should be aware. You can read more about the Changing Workplace ESA review here.

What Is Employment Law - Employment Law Canada - KCY at LAW

Ontario Employment Law Specialists

The law team at KCY at LAW are specialists in Ontario employment law. We provide legal counsel, representation and advocacy with respect to a full range of employment law services for both employers and employees. To book your consultation, call us today on 905-639-0999 or contact us online!

Notice Periods – 5 Questions About Notice of Termination

Things just aren’t working out with that one employee. A slow economy forces you to downsize. There’s a new piece of technology that will do the work of one of your employees twice as fast and for half the price.

Whatever the reason, at one point or another, most employers have found themselves in a position where they need to terminate the employment relationship with one of their employees. Then what?

5 Common Questions About Notice of Termination

Common Questions About Notice of Termination Ontario - KCY at LAWYou know you have obligations to your employee if you are going to terminate them without cause but what are they? How much notice do you owe? How much termination pay must you give?

You can find answers to these, and other questions about termination notice below.

1. Who is Entitled to Notice of Termination?

The first question employers will have to consider is if the employee you plan to terminate is entitled to notice.

Any employee who you have employed for at least three months on an indefinite term contract is entitled to reasonable notice of their termination. The Employment Standards Act (ESA) sets out statutory minimum amounts of notice to which terminated employees are entitled (discussed below).

Employees with fixed-term contracts are not entitled to notice of terminations. However, there are unique complications that come with ending a fixed-term contract before its completion. (You can read more on this topic here)

Employees who are terminated for cause are not entitled to any notice. Their termination is effective immediately.

2. What is Reasonable Notice?

Reasonable notice is intended to give a terminated employee adequate time to find a new, comparable job. Reasonable notice can be given in time or pay in lieu thereof. This means that, if an employee is entitled to one week’s notice, they will either continue working for one week after they have been terminated or be compensated with pay and benefits equivalent to the value of these things had the employee continued to work to the end of the notice period.

3. What are the Minimum Notice Periods?

The ESA sets out the minimum standards for termination notice and pay for all non-federally employed workers. Employees working in federally-regulated industries (such as banking and telecommunications) have their notice periods and severance entitlements set out in the Canada Labour Code.

The table below outlines the statutory minimum notice periods under the ESA.

Length of Employment Minimum Notice Required
Less than 3 months None
3 months to less than one year 1 week
1 year to less than 3 years 2 weeks
3 years to less than 4 years 3 weeks
4 years to less than 5 years 4 weeks
5 years to less than 6 years 5 weeks
6 years to less than 7 years 6 weeks
7 years to less than 8 years 7 weeks
8 years or more 8 weeks

During the statutory notice period, employers may not in any way change the nature of the employee’s work or compensation. This means wages and any other term or condition of employment must remain the same including benefit contributions, bonuses and vacation pay.

Employers should be aware that employees are often entitled to more than these statutory minimums. Common law notice, which is based on factors such as an employee’s position and age, often supplement statutory minimums.

For example, if an employee has been with your company for 10 years and has a relatively senior position, eight weeks’ notice may not be considered reasonable notice.

If you fail to provide an employee with the statutory minimum notice of their termination, the termination becomes a wrongful dismissal and you could be held liable for damages.

4. When does the Notice Period Begin?

Notice periods begin on the day that you give your employee written notice of their termination.

5. How is Termination Pay Paid?

Termination pay is to be delivered in a lump sum payment. It is equal to an employee’s regular wages for a regular work week. Vacation pay and benefit contributions must also be included in this payment.

Termination pay must be paid within seven days of the employee’s termination or on the employee’s next regular pay date, whichever comes later.

Termination of Employment Lawyers - KCY at LAW Burlington

Termination Of Employment Experts

Consulting with an experienced employment lawyer is the best way for employers to ensure that they give their employees appropriate termination notice. Contact KCY at LAW today on 905-639-0999 or online for more info.

Workplace Computer Privacy & Monitoring

There are many reasons an employer might want to monitor their employees’ workplace computer activities. Naturally, employers do not want their computers used for unlawful purposes or improper conduct such as information theft or harassment.

But what are your rights, as an employer, to monitor your employees’ workplace computer activities?

If you have a reasonable suspicion that the above behaviours are occurring, or if the business handled on workplace computers is of a sensitive nature, you may be able to monitor your employees’ workplace computer habits.

Employees’ Privacy Rights

In Ontario, employees have a general right to privacy in the workplace – including their workplace computer – unless it is explicitly stated otherwise in their employment contract. Because so much meaningful, private and intimate information about an employee is stored and reflected in their computer use, judges have overwhelmingly ruled that employees have a reasonable expectation of privacy when it comes to their workplace computers.
Employees Privacy Rights - Employment Lawyer Burlington

As demonstrated by the Supreme Court of Canada decision in R. v. Cole, it takes truly extreme circumstances to override this right to privacy.

Therefore, computer monitoring should only be employed as a last resort and with the greatest care.

Monitoring An Employee’s Workplace Computer

While there is no formal legislation governing the monitoring of employees’ workplace computers, privacy commissioners and arbitrators have developed various tests to determine if a certain type of employee monitoring is acceptable. Many of these decisions were initially made to address video surveillance but are now being applied to computer monitoring.

Generally speaking, in order to monitor an employee’s workplace computer use:
Guide to monitoring an employees computer use - KCY at LAW

  • There must be a legitimate concern that an offence is being committed and that computer monitoring will be an effective approach to solving this problem.
  • Except for rare circumstances, it is necessary to alert employees to surveillance practices and obtain their consent. Individuals should know who is watching and why.
  • Surveillance should be as limited as possible. General surveillance for an indefinite time is rarely acceptable.
  • Surveillance should be conducted with a specific purpose and only used for said purpose.

Workplace Computer Surveillance

There are many tools available to employers who wish to monitor their employees’ computer habits. There is software that can monitor and analyze online searches, emails and web browsing. There are tools that can track keystrokes and take time-lapsed desktop screenshots.

But be weary, none of these methods distinguish between an employee’s private and business use of their computer and even accidentally recording employee’s banking transactions or personal emails is going to get you in hot water.

Workplace Policies and Practices For Computer Use

Clear and comprehensive workplace policies should be your first defence against employee misconduct on workplace computers.

Most importantly, your policies must balance your need for information with your employees’ right to privacy. Accordingly, your policies concerning computer use and monitoring should be necessary to meet a legitimate business need.

Overly invasive monitoring policies can be costly. As mentioned before, judges do not take kindly to unnecessarily invasive surveillance. Undue monitoring can quickly amount to constructive dismissal or worse.

Workplace Computer Privacy Conclusions

Workplace computer privacy remains an evolving legal area. Employers should consult with an employment lawyer before monitoring their employees in any way to avoid legal risks.

KCY at LAW will give you the security of mind that your workplace computer privacy policies will support your business interests while protecting you against legal action. To book your consultation, call 905-639-0999 or contact us online.