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11 Things Your Boss Can’t Legally Do in Ontario
As the boss, employers sometimes assume they have complete control over the employment relationship. They do not. While an employer has the authority to run its business, it must do so within the law, and there are many things a boss simply cannot legally do. In Ontario, a web of legislation and court-made law governs the workplace, and a written employment agreement does not change that. In fact, a contract's provisions can be illegal and unenforceable if they do not comply with the law. Here are eleven actions an employer cannot lawfully take against an employee, and what can happen if they do.
Many of these actions can amount to a constructive dismissal, entitle you to severance, or expose the employer to additional damages. A written contract does not make an unlawful term lawful, and an employer calling something permissible does not make it so.
Think your employer has crossed a legal line?
Whether it is a denied entitlement, a forced resignation, or a sudden change to your role, many of these situations carry real remedies. Get advice before you accept the situation or sign anything.
Call: 1-800-771-7882 Speak With an Employment Lawyer11 things your boss cannot legally do in Ontario
Discriminate against you
The Ontario Human Rights Code and the federal Canadian Human Rights Act protect employees from discrimination on grounds such as age, sex, race, disability, religion, and family status, from hiring through to termination. Discrimination does not need to be intentional, and a written policy is not a defence. Failing to accommodate a disability, religion, or family-status need to the point of undue hardship can also be a violation.
Harass you or allow harassment
Respect and dignity are implied terms of every employment relationship. Harassment can include discriminatory remarks, unwanted contact, sexual harassment, intimidation, public discipline, yelling, and false allegations of misconduct. Under the Occupational Health and Safety Act, employers must have a system to respond to complaints. Failing to address harassment can create a poisoned environment and lead to constructive dismissal.
Retaliate against you
Employers cannot take direct or indirect action against an employee for asserting their rights or making a complaint, including discipline, termination, changing terms, harassment, cutting benefits, or demanding a resignation. Action taken close in time to a complaint can be treated as reprisal, and you may have remedies even if you were wrong about the underlying right or your complaint did not succeed.
Terminate you without proper notice or severance
A without-cause termination requires working notice or pay in lieu. The ESA and, federally, the Canada Labour Code set minimums, and common law can require far more, up to around 24 months of compensation. Employers should not allege cause without substantiating it through investigation, written warnings, and a real chance to improve, and must carry out terminations in good faith.
Deduct from your wages without consent
Employers cannot deduct from your pay without written authorization, except for taxes, benefit contributions, statutory deductions, and court-ordered payments. Any deductions must be itemized on your pay stub.
Withhold wages you earned
Employers must pay at least twice a month and cannot withhold wages you lawfully earned. A dispute with an employee is not a lawful reason to hold back pay for hours actually worked.
Deny your vacation entitlement
Subject to limited exceptions, employees are entitled to at least two weeks of vacation per year and vacation pay of at least four percent of wages. Employers must provide both the time and the pay.
Demand unpaid overtime
Employers cannot require non-managerial employees to work overtime without pay. The ESA requires time and a half for hours worked over 44 in a week. Whether you are paid hourly or on salary is usually irrelevant, so a salaried employee regularly working past 44 hours may be owed overtime.
Misclassify you as a contractor
Some employers label employees as contractors to avoid vacation and holiday pay, overtime, minimum wage, and severance. The law looks at the true substance of the relationship, not the label in a contract. Misclassification can expose an employer to fines, tax consequences, and investigations.
Force you to resign or retire
Resignation and retirement must be genuinely voluntary. An employer cannot make that decision for you, directly or indirectly. Forcing a resignation or retirement can be a constructive dismissal entitling you to severance, and a forced early retirement can also support a claim for age discrimination.
Change or breach your employment agreement
Employers cannot make significant unilateral changes to core terms such as wages, bonus, hours, location, or duties without your consent. Doing so can be a constructive dismissal. So can breaching a written or implied term, including an unpaid layoff or suspension where no contractual term allows it.
Were you terminated, forced out, or shortchanged?
If a termination, forced resignation, or change to your job may have crossed a line, you could be owed severance or other remedies. Estimate your severance, then have your situation reviewed.
Estimate Your Severance Or call us: 1-800-771-7882What happens when an employer breaks these rules
Depending on the wrong, an employer can find itself negotiating a resolution, defending a legal proceeding, or liable for significant damages. For example, terminating an employee for cause because they could not perform after requesting accommodation can lead to a claim for severance and additional damages. An employer in that position can end up paying its own legal costs, the compensation a court awards the employee, and a portion of the employee's legal fees as well.
How an employment lawyer can help
Whether you are an employee or an employer, the first step to understanding your rights and obligations is a consultation. Every situation is fact-specific. Employees benefit from guidance in navigating a dispute, negotiating a resolution, and, where necessary, pursuing a claim. Employers benefit from advice before a dispute arises, including compliant workplace policies and enforceable, risk-minimizing employment agreements. Early advice is often the difference between resolving a problem and litigating one.
Facing a workplace issue in Ontario?
Employment issues are not one-size-fits-all. If your employer may have crossed a legal line, our team can assess your situation and advise on your options, including whether you are owed severance. We advise employees and employers across Ontario. Start with our severance pay calculator, or read our guides to constructive dismissal, wrongful dismissal, and workplace human rights.
Call us at 1-800-771-7882 or fill out the form below and we will be in touch.
The information in this article is general and is not legal advice. An employment lawyer can advise on your specific situation.