Know your liabilities

Author: Michele Lawson

Text Size

Michele Lawson

Sonja Hodis has been practicing law in Barrie since 2000. She opened her own practice in 2007 specializing in employment law, civil litigation, wills and estates, and condominium law.

Employer responsibilities don’t change with the ability to make payroll, warns employment lawyer Sonja Hodis. “The fact that there’s bad economic times and it’s requiring employers to let people go, does not mean that they are going to be able to escape liability to pay employees’ notice,” says Hodis. “Seek legal advice beforehand. It’s cheaper at the beginning than at the end.” At a library-sponsored seminar entitled “You’re Fired, What’s Next,” Hodis spoke to area employees and employers about their rights and responsibilities during job terminations. She spoke specifically to non-union applications, where there are no collective agreements in play. “I get tons of calls all the time from people not wanting to take the steps of retaining a lawyer, but wanting answers,” she reports, and knew it was a topic at the forefront of many minds. The presentation was intended to provide a basic overview that would assist in the decision of whether to talk to a lawyer further about specific situations. “Part of our mandate is to provide information, and that is so much more than books,” comments business librarian Anne Dorsey of the Barrie Public Library. With this particular topic, “we knew someone who has an area of expertise and is a well-received speaker.” Hodis has been a popular speaker in the past with other topics, and was asked by Dorsey to return to provide the facts regarding cutbacks and layoffs. “You don’t have to continue to employ anyone, but there are consequences,” Hodis continues. “So, you have to know that before, so you can make a business decision.” In an ideal world, all employers would have employee contracts in place that include a detailed termination provision that pre-determines what’s going to happen. The Employment Standards Act (ESA) outlines the minimum statutory notice requirement terminated employees are entitled to by law. The length of the notice period is determined by formula depending on the length of employment. Contracts can be set in place to limit liability to the ESA minimum. If a notice is challenged before the courts in a wrongful dismissal suit, new rules apply. Common law, which is a collection of precedents set by judges, now sets the standards. In determining the appropriate new notice period, judges will consider the character of employment, the length of service, the employee's age, and the availability of similar employment given the experience, training and qualifications of the job seeker. The court award, at this point, may be substantially higher than the ESA minimum. When offering a package, “you have to know what the employee would be entitled to,” Hodis says. “The closer it is to reasonable, the less likely the employee will be to pursue it because it’s not cost effective for them to do so.” Although notice can be avoided altogether in dismissals due to cause (where the burden of proof is on the employer if it goes to court), Hodis suggests offering a financial package may be a good decision regardless. “Sometimes it’s better to give the employee something and get a release,” she says. “Principle costs money.” So do human rights complaints and punitive damages. “Most of the time, unfortunately, I get brought in after the decision has been made and they’ve been sued, or they get a letter from the employee’s lawyer wanting to negotiate a settlement,” says Hodis. “You can save money by being proactive and lower the risk of facing the Human Rights Tribunal, but you need to seek professional advice. It’s much more flexible before than after.” For more information, email Sonja@hodislaw.com