Lior Samfiru and Peter Cicak of Samfiru Tumarkin LLP presented on employment law issues during the job search process. They discussed key topics such as employment contracts, working as an independent contractor, termination of employment, and wrongful dismissal lawsuits. Important clauses in employment contracts include termination provisions and restrictive covenants. While contracts usually benefit employers, employees should understand their rights and negotiate terms carefully. The distinction between employees and independent contractors depends on several factors like control and economic dependence. Employees have rights regarding termination with or without cause that may entitle them to notice or severance pay.

1. 1
Barristers & Solicitors
SAMFIRU TUMARKIN LLP
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
T: 416.861.9065
F: 416.361.0993
EMPLOYMENT LAW ISSUES
DURING THE JOB SEARCH
PROCESS
Presented by: Lior Samfiru and Peter Cicak
Prepared for: Mississauga Employment
Center

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Employment Law
Considerations
 Topics:
1. Employment contracts: what you need to
know
2. Working as a consultant/independent
contractor
3. Termination of employment: your rights
4. Steps in a wrongful dismissal lawsuit
5. Questions.

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Employment Contracts:
What You Need to Know
 Consider this:
 Written contracts almost always benefit the employer
 Contracts are drafted by lawyers
 You sign it, you have to live with it
 Will govern your employment relationship and even
conduct after employment comes to an end

4. 4
Employment Contracts:
What You Need to Know
Important Contractual Clauses
1. Termination: The BIG One
Consider this Clause:
“If your employment is terminated without
cause, the Company shall give you notice
or pay as required by the Employment
Standards Act of Ontario. This shall
constitute your full termination
entitlements”.

5. Employment Contracts:
What you Need to Know
Termination Clauses:
 Employer will seek to minimize termination exposure
 Employment Standards Act only prescribes minimums
 Contract may have fixed notice period --- not always
good.
 The longer you work, the more important it becomes
 Understand what you will get at termination (pay, bonus,
benefits, etc.)

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Employment Contracts:
What You Need to Know
2. Restrictive Covenants
 Non-competition provisions: duration, location, scope
 Non-Solicitation
 Confidentiality obligations
 Can significantly impact ability to find other employment
3. Other Clauses to Note:
 Are changes to duties allowed?
 Are changes to pay allowed?
 Are other documents mentioned (get a copy!)
 Does contract apply when position changes?

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Employment Contracts:
What You Need to Know
 Negotiating Terms
 Negotiate before you start working.
 Only fight the battles that matter
 Don't ask and you shall not receive
 Agree in writing to re-negotiate once specific
conditions met

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Independent Contractor/
Consulting Arrangements
 Employee / Consultant: What's in a name?
 The employment contract places a certain label on the
relationship
 Generally, the question is:
 Are you an employee, or are you self-employed?
 No one factor is determinative of your relationship,
including the label that the parties to the contract choose
to place upon it
 Contract here beneficial to both parties

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Independent Contractor/
Consulting Arrangements
 Factors to Consider:
 All relevant factors will be considered when defining the
relationship:
 Control over how your work is done
 Ability to freely negotiate your pay and set hours for work
 You own your own tools, materials; and
 You take on the full profit or loss from your business
 Are you economically dependent on one company, or are
your activities an essential component of the business -->
EMPLOYEE

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Independent Contractor/
Consulting Arrangements
 What Does Not Work:
 Changing the title only
 Can only work for one employer? No good.
 Title, but nothing else
 You perform the same job as other EMPLOYEES

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Independent Contractor/
Consulting Arrangements
 Why be "Independent Contractor":
 Taxation
 Ability to claim "reasonable business expenses", as
opposed to being confined by statutory expense deductions;
 Mischaracterization could result in a reassessment and
might result in the imposition of fines
 Payroll deductions
 No statutory deductions taken from pay (EI, CPP and
income tax), however
 Independent contractors:
 Cannot collect EI benefits when unemployed;
 Would be responsible for making their own CPP
contributions

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Independent Contractor/
Consulting Arrangements
 Considerations:
 No minimum standards protection
 Independent contractors are deprived of minimum standards
legislation
– Not subject to minimum wage, hours of work, vacation and
other protections
 Limited notice of termination rights

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Termination of Employment
 Manners of Termination
 Termination for cause - no notice
 Termination without cause - notice!

14. Termination of Employment
 Termination with cause
 Employer can terminate employment for cause, where
employee’s conduct is inconsistent with the continuation
of the employment relationship.
 Can only happen when the employee is guilty of repeated
and very serious misconduct.
 Employer has an obligation to take other lesser forms of
discipline before resorting to termination.
 One incident of misconduct is almost never enough.
 If employer establishes cause, no requirement to pay
severance.
 In reality, very difficult to establish cause, and employer
may be liable for damages for bad faith.

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Termination of Employment
 Termination Without Cause
 Can happen at any time, for any reason
 Performance is irrelevant
 Seniority is irrelevant
 No termination as a result of a discriminatory ground (for
example, no termination without cause because
employee was absent due to an illness)

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Termination of Employment
 Termination Without Cause (contd.)
 Employer must provide reasonable notice or pay in lieu
thereof
 Starting point: employment contract
 No contract: probably good news for employee
 Must determine what reasonable notice is for each
employee

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Termination of Employment
 Termination Without Cause (contd.)
 Notice is based on employee's age, length of employment,
nature of position
 Was employee induced to leave secure employment? Notice
goes up.
 Employer may decide to give working notice
 If no working notice, must be put in the same financial position
as if given working notice.
 Payment can be made as lump sum or as salary continuation.
 Package must include everything: salary, bonus, commissions,
benefits, stock options, vacation pay.
 Important: employee has duty to mitigate

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Termination of Employment
 Termination Without Cause (contd.)
 Employer imposed time limits: take your time!
 Always take package home and consider speaking to a
lawyer
 Employer will want a release
 Consider if employer must pay lump sum (if payroll >
$2.5 million)

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Termination of Employment
 Constructive Dismissal
 Significant, unilateral, change to important
contractual term
 Gives rise to termination without cause
 Employment contract is important
 Resign...or else...

20. WRONGFUL DISMISSAL
 Steps in Wrongful Dismissal Claim:
1. Demand Letter: resolves vast majority of
disputes
2. Statement of Claim served by employee
3. Employer has 30 days to serve Statement of
Defence
4. Mandatory Mediation (Toronto only): resolves
close to 95% of employment lawsuits

21. WRONGFUL DISMISSAL
Continued:
5. Examinations for Discovery (only for lawsuits
exceeding $50,000)
6. Pre-Trial Conference
7. Trial
Timelines:
To mediation: 3 months
To trial: 8 to 12 months

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For further information, please
contact:
Lior Samfiru
Tel: (416) 861-9065
Fax: (416) 361-0993
www.stlawyers.ca
Offices in Toronto and Mississauga
Barristers & Solicitors
SAMFIRU TUMARKIN LLP
Toronto Head Office:
350 Bay Street
Suite 1000
Toronto, Ontario
M5H 2S6
Mississauga Office:
2 Robert Speck Pkwy.
Suite 750
Mississauga, Ontario
L4Z 1H8
Presented by: Lior Samfiru and Peter
Cicak
Prepared for: Mississauga Employment
Center
Trusted.
Dedicated.
Experienced.