January 13, 2021

Seeking legal employment advice helps businesses focus and minimize risk

A sensible employer will consult an employment lawyer when faced with a workplace issue but the truly prudent one knows know the benefit of ongoing counsel.

Small businesses often don’t anticipate the many situations that can arise in an employer-employee relationship. They don’t have that foresight because, for the most part, they have never been through this sort of problem to know what happens and how to handle it.

If you are an employer who has never handled a termination or if you are just starting out in the workforce, you are unlikely to know how the end of the employment relationship is going to unfold. It’s not until an employment issue becomes a costly distraction that those affected appreciate the practicality of ongoing legal advice.

People may have different reasons for failing to consult with a lawyer, including cost, convenience and a misguided belief in one’s own legal acumen. Employment law is continually changing and it can be complex. There is no one-size-fits-all solution to the myriad of issues that can arise. 

The Value of HR Law Advice

The beginning of an employment relationship is ordinarily an optimistic time for both sides. The employer and the worker they have hired generally have the best of intentions. The association is going to be successful, they believe, and both sides prefer to avoid negativity because it can set a bad tone for the future. But far too many employment relationships unravel despite best intentions. That’s when it becomes apparent that better care should have been taken to ensure a strong employment contract was in effect, setting out expectations for the worker and defining the responsibilities of the employer, both during the relationship and at its conclusion.

Companies of all sizes should have ongoing access to an experienced employment lawyer. I equate it to having a family doctor. If you value your health, you get regular checkups and consult with your doctor when a problem crops up. The prudent person doesn’t ignore a health concern until it becomes serious enough to call an ambulance. It’s no different with your business. If you want a healthy bottom line, taking steps to avoid workplace issues only makes sense.

A lawyer can provide guidance in all stages of the employment relationship beginning with employment contracts, particularly ensuring that termination clauses are valid and enforceable. 

An employment lawyer can determine if workplace policies and regulations are current and consistent with legislative requirements, particularly workplace harassment and violence poicies. If there are performance management issues, a lawyer can help document those concerns, preparing correspondence to employees that properly record the nature of the issue and give appropriate warnings. A lawyer can also offer advice on human rights accommodations in the workplace.

Regular Contract Review

A regular review of employment contracts is also important because legal expectations are constantly evolving. Every employment lawyer has created a contract in the past few years that they believed was enforceable, but there have been recent court decisions to change that assumption.

For example, in Waksdale and Swegon North America Inc., a wrongful dismissal claim heard before the Ontario Court of Appeal last June, the plaintiff successfully argued that his employment contract was not binding because the termination for cause provision was void.

The judgment meant most employment agreements in Ontario needed to be updated. You may well have such a contract which could put you in financial peril in a severance dispute.

Employment contracts can appear airtight but it is not just how the agreement is structured that is important, as was discovered in Battiston v. Microsoft Canada Inc. In that case, an Ontario Superior Court justice found that even where there is clear wording that minimizes an employee’s entitlement to compensation at the time of dismissal, it may not be enforceable if the employer fails to bring the provision to their attention.

HR Advice vs. HR Legal Advice

The other misconception I have encountered is the belief that advice from an employment lawyer is unnecessary if a company has a human resources department or independent consultants. The difference is that with a lawyer, all of our advice is privileged. None of it can be disclosed. That’s not the case with HR representatives. Whatever advice they are providing to the employer about an employee can be disclosed in litigation. The solicitor-client relationship is the only one in the law that is truly privileged and confidential.

The cost of retaining legal counsel is well worth it in terms of peace of mind and minimizing or avoiding liability.

Employee Advice

It is also in the best interest of an employee to consult a lawyer, especially at the time of termination. While a severance package may appear decent at first glance, an employer lawyer having dealt with countless termination situations will provide the necessary insight and advice to ensure that the package is fair at law.

Getting advice at the outset of an employment relationship is valuable to new employees. I can give employees insight into their termination entitlements and any post-employment restrictions concerning confidential information and competition. That advice can avoid very costly mistakes that employees sometimes make prior to the end of an employment relationship. 

If you are unsure about your legal rights, don’t leave it to chance. Regret can come at a high cost.