Employer Frequently Asked Questions
The questions posed and answers provided are meant to be a guideline only. In seeking answer to legal questions, please seek the advice of a qualified lawyer.
Can I give time off in lieu?
Yes, an employee may be compensated for overtime hours by receiving one and one half hours of lieu time upward for each hour of overtime work instead of overtime pay provided there is consensus between the employer and the employee.Back to top
Do I have any personal liability as an officer or director of an employer?
In limited circumstances, an Officer or Director of the employer does have personal liability with respect to unpaid wages in the event of bankruptcy, vacation pay and holiday pay. The maximum liability of a Director of an employer corporation is six months wages. With respect to vacation pay, Directors are liable for not more than twelve months.Back to top
How can we make changes to our organization without employees crying "constructive dismissal"?
If sufficient timely notice is provided to employees about extensive changes to the organization which affects their employment, you can avoid claims of "constructive dismissal". If communications are clear about changes to the workplace environment, you can often avoid workplace angst and enmity.Back to top
How do we best handle terminating the employment of a manager or executive?
The first step is to get reasonable legal advice in terms of what the expectations may be of the terminated or retiring manager. An exit strategy has to be prepared including who will attend the final meeting with the individual when termination is related to that person. Assessment regarding security needs has to be addressed. Determination of the amount of the "package" or payment obligations ought to be considered in advance of the termination meeting.Back to top
How do we handle an employee on "sick leave" who does not appear to want to return to work?
An employee who is on sick leave who does not appear to want to return to work has to be offered their employment. Their position must remain open for some time. If, after repeated requests, the employee does not want to return to work and it is clear that they are "no longer on sick leave", an employer can treat that employee as having terminated their employment.Back to top
How much overtime can we require our employees to work?
An employer must pay an employee overtime pay at least one and one-half times his or her regular rate for each hour worked in excess of 44 hours in each week. Overtime should not exceed 48 hours per week unless there is an averaging agreement or some policy provision which is agreed upon between the employee and the employer and which needs the approval of the Ministry of Labour.Back to top
Our employee is setting up a business to compete with us. What are our rights?
First, determine whether or not you have a non-competition agreement with this individual. If yes, you will review the non-competition agreement to determine whether or not it is enforceable. In most instances, an employee will be allowed to compete provided that they do not use any information, knowledge or trade secrets which belong to the previous employer. If clearly they are using sales information and contacts which belong to the employer, the previous employer may be able to bring injunction proceedings to stop the employee from competing in that manner or obtain a damages award where the employee has earned profits which he/she would not have earned but for the fact that he/she used "borrowed" sales information or trade secrets.Back to top
We are purchasing a business, what are our obligations to the existing employees?
If the business is going to remain the same "day-to-day business", a change in ownership would be deemed to be seamless and the new owner is referred to as "successor employer" having all the obligations towards the existing employees as if there were no change in ownership. In other words, seniority continues with respect to the existing employees. With seniority, all the obligations regarding notice and/or payment in lieu of notice would apply. In some instances, new owners reserve a portion of the purchase price as a buffer in the event that existing employees may have to be terminated. In other instances, the old employer will pay notice to the existing employees so that the new employer can start with a fresh workforce with "zero" seniority.Back to top
What are our obligations to an employee who has become injured or disabled?
You must immediately contact the Workplace Safety and Insurance Board and file the necessary documentation to advise as to the injury. Also, the Ministry of Labour, Occupational Health & Safety division has to be contacted. The Ministry will determine whether or not an inspection is required. Where there is potential for further injury to other workers, steps have to be taken immediately to ensure against such injury or disability. A failure to pay heed to Ministry guidelines and directions that may be received through the Ministry of Labour may mean extensive fines or jail time for executives.Back to top
What do we do if a union is trying to organize our employees?
An employer should not interfere with an organization attempt save and except that any organization should not be occurring during work hours or on company premises. Though an employer is entitled to express his or her own opinion with respect to unions, it is best for the employer to keep these comments to themselves.Back to top
What's the best way to respond to a grievance?
Any grievance must be met by immediate communication and a meeting between the parties. The grievance policy in a collective agreement has to be followed and all the steps therein addressed.Back to top