5 Commonly Asked Questions About Employment Law
There are many factors which could influence an employment law claim or case, and these factors are not always clear to those who don’t practice law, often making it overwhelming and frustrating to understand the particulars of a given case. We receive various questions from our clients when it comes to employment law situations – some of the most common questions about employment law that we receive are outlined below.
What is Constructive Dismissal?
A constructive dismissal typically occurs where an employer unilaterally (without the employee’s consent) changes fundamental terms of the employee’s employment agreement. Some common situations where a constructive dismissal occurs includes demotions, changes in responsibility, changes in reporting functions, changes to the location of work, or another important term of the employment agreement. In all cases, the employee essentially feels forced to resign if they do not accept the changes, where a constructive dismissal claim is typically triggered.
What Are Bardal Factors?
If a constructive dismissal has been established in a case, the next step is typically to determine how much compensation the employee is entitled to. While there are hundreds of factors which may influence this determination by the courts, there are 5 common factors which are typically cited when determining how much common law reasonable notice the employee is entitled to, referred to as the Bardal factors, which stem for a 1960s case. These factors include:
- The nature and character of the employment
- Length of service
- Age of the employee
- The likelihood of securing similar employment considering the employee’s experience, training and qualifications.
While these are the common factors which are analyzed, it is important to remember that there are hundreds of factors which may influence the determination of common law reasonable notice in cases of constructive dismissals.
What Are Human Rights Violations?
Another common question about employment law that we receive deals with human rights violations in the workplace. In Ontario, workplaces fall under one of the categories that are protected by Ontario’s Human Rights Code – where discrimination, bullying, or harassment based on any of the protected grounds is prohibited. Similarly, federal employees are protected by the Canadian Human Rights Act. Human rights violations can result in compensation being owed to the employee for lost wages, but also for injury to dignity, feelings, and self-respect. The protected grounds include:
- Age
- Ancestry, colour, race
- Citizenship
- Ethnic origin
- Place of origin
- Creed
- Disability
- Family status
- Marital status
- Gender identity, gender expression
- Receipt of public assistance
- Record of offences
- Sex (including sexual harassment, pregnancy or breastfeeding)
- Sexual orientation
Employees who face discrimination, bullying, or harassment based on any of these protected grounds should consult with an employment lawyer right away to determine the next steps in their particular situation.
What Is Inducement?
Inducement typically occurs when an employee has given up their established employment based on relying on the promise of job security of a prospective employer, and is dismissed shortly after commencing work with the new employer. Some common factors that are considered to determine if there has been inducement include:
- what is the reasonable expectation of both parties?
- did the employee seek any assurance of long term employment with the prospective employer?
- did the employee perform any due diligence prior to accepting the new employment?
- the length of time the employee remained in their new position.
This list is not exhaustive, and employees who feel that they have been induced should seek the assistance of an employment lawyer as soon as practically possible.
Can I Be Asked Anything at a Job Interview?
While job interviews are a common step in the recruitment process for most employers, job interviews are not always conducted legally, and there are some questions that employers are prohibited from asking. All job interviews in Ontario and Canada at large, are protected by the Ontario Human Rights Code, and the Canadian Human Rights Act, respectively. This means that any questions asked in a job interview cannot be based on any of the protected grounds found in the applicable legislation (whether it is a provincially or federally regulated workplace environment).
Contact Us
If you are an employer who is facing an employment law claim, or an employee who feels that your rights have been infringed in the workplace, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
If you are a small or medium-sized company looking for full-service support with same day response, visit our CLO Program page for our strategic solutions.
