?> Employment issues | Andriessen & Associates
March 2018
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Employment issues

When I was in grade 8 and asked what I wanted to be when I grow up, I knew that it was to work in a law firm. I knew I didn’t want to become a lawyer, or be part of Reception (not that there is anything wrong with that!). I knew I didn’t want to go to Court, but wanted to be involved in files.

So why not become a Legal Assistant? At the time, I wouldn’t have known the difference, but when it came to college, it became apparent that I wanted to become a Law Clerk.

Law Clerks overlap with the Legal Assistant role, and that’s where I started. However, depending on the type of law firm, the more busy a Law Clerk gets, the more vital their role is and can no longer cross over to the Legal Assistant work.

What do I do you ask, well, in a nutshell, I take care of the nitty gritty so that lawyers can look at the big picture. For example, for a lawyer heading off to Court on a very important Motion, I make sure they have everything they need. I make sure the costs they are seeking are calculated and outlined in an organized fashion and that they have enough copies of their Orders to hand up to Judges. I also make sure that the Motion has been confirmed in time. Yes, ultimately it is on the lawyer’s shoulders to make sure this happens, but if they have to worry less about those types of things, the better they are at being a good lawyer for our clients. Law Clerks are also a great option for keeping costs down when it comes to drafting enforcement documents and reviewing file materials, which is also very important to a client.

On the corporate end of the spectrum, I make sure that annual corporate record keeping is being maintained and that the Minute Books are up to date. I make sure anything that needs to be reported to the Ministry of Government Relations is being reported. Again, this helps the lawyer focus on more complex corporate issues, and ensures that their time is being utilized how our clients need it to be.

The lawyer is always the point of contact for our clients, but it’s not just lawyers in a law firm, it’s all of us. We are a team, and we all have our vital roles. We couldn’t live without our receptionist or Legal Assistant, and I know that in our office, we couldn’t live without the Law Clerk.

Christine Allan
Law Clerk

In Ontario, some significant changes are being proposed to the Employment Standards Act – the important words is “proposed” in that sentence, there is time for Employers to chime in with their thoughts. Our firm does not represent Employees in Employment Law issues, so our focus is solely on the Employer’s end of things.

The summary of the report, in my opinion, reads very much that Employers are evil and need to be reigned in by a more robust Ministry of Labour.

The reality is that we currently live in an age of Employment Law where the scale is already weighted very heavily in favour of the Employee. If an Employee is terminated without cause and without a contract limiting the amount of Notice of Termination they are entitled to, the Courts are consistently awarding at least one month for each year worked. That’s a lot of Notice for an Employer to pay out if they’re already downsizing for financial reasons.

Think the workplace is not weighted in favour of an Employee? Try navigating the challenge of terminating an Employee who claims to have a disability: have you accommodated them to the point of undue hardship? No, well, then you’re going to pay a lot.

Ensuring that Employees are not discriminated against and given fair Notice of Termination is already the law in Ontario.

Some of the new proposals include requiring Employers to pay for doctor’s notes if they require them. Really? Wow. That’s lovely and butts up nicely against the duty to accommodate disabilities which require Doctor’s input.

I recognize there are some bad apple Employers out there, but most of the Employers are looking to create a team of people who work with them to create a successful business. Let’s not punish the good apples for the bad behaviour of the bad apples.

Inga B. Andriessen JD

Do you SnapChat? Does your company? Do you have any idea what I’m talking about?

You should.

As a business law firm, one of our beliefs is that you must continue to evolve. This doesn’t mean you need to use every new social media platform that is created, but you should understand it and understand how your clients and/or employees are using it.

SnapChat started off as a sexting Ap for teenagers. That would be a very bad use in a work environment.

It has now evolved into a platform that lets people and companies tell “stories” and turn their faces into dogs with tongues hanging out. The last part is o.k. at work, if your co-worker doesn’t object to being turned into a dog’s face; however, doing that without their permission could lead to allegations of bullying and a toxic work environment.

The above two paragraphs are examples of why you can’t ignore new social media if you are an employer. Your obligations to protect your employees from harassment and discrimination don’t end because you don’t understand technology.

Our firm Snaps occasionally. Our Snap Chat name is AndriessenLaw . Feel free to become friends with us if you’re interested in behind the scenes photos of the firm – last week our paralegal, Murray Brown’s guppy tank was featured. We did not turn any guppies into dogs.

Inga B. Andriessen JD

It’s almost July. The kids are or are almost out of school. It doesn’t matter that I’ve been out of school for way too many years to remember, there is still something about July and August that says “vacation”.

No. We’re not shutting down the firm for the summer, but most of us will take a break for at least a week to recharge and that is important. I remember being a student and working in jobs where people chose to take vacation pay but not vacation time. Those people didn’t seem very happy.

If you don’t take time away from work, it is easy to be ground into the routine and start the downward spiral of hating your job.

Even if you can’t take a full week off, I find taking a long weekend off and enjoying one of our Provincial Parks can leave me just as refreshed as if I’d been away for longer. There is something about being in nature that just lets you relax. Of course, that could be the BC native in me coming out, maybe being in a bustling city is just as relaxing for Toronto natives.

The point is, take time to not work so that you can enjoy getting back to work.

Inga B. Andriessen JD

At the end of last week, the Judge handed down his decision in the Jian Ghomeshi case. The finding was that the Crown had not proven its’ case “beyond a reasonable doubt”. That is the technical definition of what needs to be established in a criminal case before someone is convicted of an offence.

In Business Litigation, which is generally a Civil matter, the burden of proof is: has the plaintiff proven their case “on the balance of probabilities”? This is often described as a lower threshold.

While this threshold is lower than the criminal requirement, it still exists and a Judge will not simply “take your word for it” that something happened. You must prove your case.

To prove a case, evidence is gathered: emails, notes, contracts, photos and witness statements. These all form an important part of proving your case.

If you “forget” something until the defendant’s lawyer is cross-examining you, the decision is not likely going to go in your favour. If a Judge decides you’re lying or colluded with people to build up your case, you’re definitely not going to win.

Believing you are entitled to Judgment is not the same as proving it: you must prove your case or you’re not going to win.

Inga B. Andriessen JD

Many businesses are blissfully unaware of the legal minefields they are navigating until one day it happens: a terminated employee sues, makes a Ministry of Labour Complaint or files a Human Rights Complaint. All of a sudden, the employer is faced with the full wrath of statutes and common law and generally a cheque made payable to the former employee. Much of this can be avoided if you talk to a lawyer before terminating an employee.

Here are a few of the problems that need to be addressed:

1. Make sure you’ve calculated your statutory termination and severance pay correctly. If you don’t do this correctly, you could be punished by a Court with “punitive damages” for failing to comply with the statutory minimums.

2. Ensure your business doesn’t become the Long Term Disability provider for former employees by drawing to their attention the availability of those benefits and ensuring you comply with the current Case Law trend of providing those benefits throughout the notice period.

3. Be certain there is no “duty to accommodate” an employee with a disability before terminating their employment. In Ontario, employers must accommodate a disability to the point of undue hardship on the employer, not the employee.

Terminating employees is not simple. Get good advice before you go that route: you’ll save yourself a lot of money and stress if you do.

Inga B. Andriessen JD

Effective November 20, 2015, changes to the Ontario Employment Standards Act came into effect that could significantly impact companies using Temporary Help Agencies to staff positions.

If the Temp Agency you use does not pay the employees their regular wages, overtime wages, public holiday or special wages then your business (you personally, if you’re not incorporated) can be required to pay those monies to the employee.

Yes, this means that even if you already paid the temp agency, you’ll be paying the employee “again”.

The public policy behind this is to protect vulnerable workers. Clearly “vulnerable” employers are not a consideration.

In order to protect your business from this liability, ensure that you do some due diligence into the Temp Agency you’re using. Ensure they actually pay staff on time. Investigate how long they have been in business. Ask questions to protect your business from unintentionally paying twice for temporary employees.

Inga B. Andriessen JD

I recently had a meeting with a client who retained us to draft a Shareholder’s Agreement for her and the co-owner of her business. This type of an agreement lets the shareholder of a company control what happens in the event of certain things such as change in ownership, death of a shareholder or the divorce of a shareholder.

Some of the items she easily had an opinion on, however, some items she said “let’s leave those out and we’ll deal with them later.” I encouraged her not to do that, rather than to tackle the hard issues head on and while that advice was with respect to her particular situation, the advice that follows applies to all business issues, not just legal ones.

It is better to plan for something than to respond to it happening.

From a legal point of view, it costs far less to draft a legal agreement that sets out what will happen if an event takes place as opposed to litigating the issue when it happens and there is no agreement in place. This applies to employment agreements, contracts with customers and suppliers. Litigation dollars are easily ten times the amount of dollars spent on drafting documents: use your legal fees wisely, plan ahead.

From a general business point of view, facing the possibility of an unpleasant event head on, let’s you plan how to deal with it before you are in “crisis mode” and struggling to deal with shock as well as coming up with a plan.

Plan your response before you need it. We can help with that.

Inga B. Andriessen JD

Remember years ago when Martha Stewart had an “Apprentice” TV Show and she told one of the female contestants, there are no tears in Business? That was likely some of the best advice she gave during the show.

Tears are borne from emotion and the emotion in a Business should come after hours, not during.

As a Business Lawyer one of the most challenging types of business I deal with it “the family business”. Businesses which involve multi-generational family relationships can be the most difficult businesses to find solutions to what would otherwise be simple problems.

The best advice anyone can offer a family Business is to use lawyers to negotiate difficult issues. Cool heads, steeped in legal knowledge are the right people to resolve conflicts.

Lately, litigation involving Constructive Trusts in Family Businesses has seen an increase in acceptance by Canadian Judges. Older generations who live off the work of their children and grand-children cannot cut those children out of the business without compensation.

Litigation is the last place a family Business should end up in, however, at times, that is the only way to ensure everyone is dealt with fairly.

If you need help navigating these waters, without tears, please reach out to me.

Inga B. Andriessen JD

This week is Administrative Professional’s week. I’d like to think every week is that week in our firm, though to be fair, we don’t all enjoy a lunch out together every week.

When I was an Articling Student, I was initially terrible at working with Administrative Professionals. I had that arrogance that many young lawyers have (masking the insecurity of not knowing what we’re doing) and behaved accordingly. Thankfully, one Legal Assistant took me aside and told me if I continued to treat people that way, I’d run through Admin staff like toilet paper and my career would be hurt by it.

I really appreciate that chat and now, 22 years later, know that I turned it around due to that chat.

What I know now is that I work with people, they do not work for me.

What I know now is that no one role is more important than another in the firm – we do well when we pull together.

As a result of turning it around I have a great staff who have been with me a long time and I very much appreciate everything they do !

If you have an Admin Professional in your life, make sure you tell them how much you appreciate them this week – it does matter !

Inga B. Andriessen JD