JamesM

I've been involved in the situation twice.

Once the employer folded quickly after several lawyer letters and coughed up a couple of months.

The second time is ongoing and I am due in court next month.

You don't know which route the employer will go. It will cost your friend I would assume a minimum of $1500 (for letters, lawyer communication etc) if the employer does decide to settle up with a month or two more. After that it depends what he is claiming and where?

We are lucky in Ontario as the small claims court handles claims up to $25k and the court looks unfavourably on employers trying to bully and swindle employees. My lawyer advised me I did not need her for the process as the judge takes the employees side and the employer has to prove I was treated fairly. My costs ended at just over $2k. Other than the long wait the rest I have done myself.

However they are not as employee orientated in other provinces based on my limited research and knowledge.

If your friend is claiming a considerable sum and is above small claims then his fees could be 5 figures although he could well get awarded costs if successful.

He really needs to assess risk/reward with a lawyer and then he alone must decide if he wants to throw the dice. Also as mentioned it can drag a year or so.

Jingsamichty

What remedy IS your friend looking for? Reinstatement, or just a bit more than the 4 weeks pay offered?

I can certainly understand your friend's anger, but I can't see any legal reason for the employer to move much beyond what has been offered. Business is business, unfortunately, and it's a rare individual who will be promised a job for multiple years.

Edo

Sorry to hear that you are going through similar problems James. Seems like might is right is the case in Canada where an employer can just kick you out any time without even have to think about compensating you. Now I can see why they most people only have a 2 weeks notice period fitted into their contracts here.

I hope it works out for you mate

Edo

Don't think he wants to go back cuz he has only mentioned getting some extra compensation to me so far.

Edo

What if he is lucky enough to avoid going to court and gets an out of court settlement with his employer through a lawyer. Do you think his references etc would still be affected in that case?

Steve_

It really depends what he's got in writing from them, what contract terms he had and whether they broke them.

As I've pointed out on here before, the Alberta Employment Standards Code is a mess and given there is a labour shortage here and they did keep him on for more than a year, I just don't see what his argument is if it's just, hey they promised me a job and they laid me off after 14 months.

I mean, there's people getting killed on Hwy 63 on a routine basis because the truck drivers are all doing well over 12 hours work a day, which is illegal under the employment standards code. It's just a joke really.

Aviator

Labour standards are the minimum, if an employee sues under common law, there have been some crazy judgements come though. Seven months to an employee who only worked for seven months, three months to a new hire, who never started work as the employer found someone else.

Truck drivers hours are covered by Hours of Service under the Highway or Road Traffic Act in the province, not employment standards. ES only governs unreasonable hours of work. All employees are covered under the hours of work section of the ES.

scrubbedexpat091

So even if an employer does the minimum required by law to separate, the employee may still be able to get more under common law? Do I understand that correctly?

Makes me wonder how well all the you wont sue us if this that or this happens to you I had to sign for a job once would hold up if an employee did get hurt and fought it.

JamesM

Employers have a duty of care. No contract can put them beyond common law.

The courts understand that most things employees sign are because they are in positions where they have to.

The important thing is never sign the release if you are let go with out legal advise and before you take a job negotiate on any points that concern you. On your initial employment contract the employer may have a case as you did not have to take the job.

Anything signed once you're in the job is unlikely to hold up in court because you most likely had to sign it. If it is detrimental to the employee then the employer is supposed to offer "consideration" which is some kind of compensation for the change in terms. This is where most employers fall over.

As a rule of thumb when you are let go you should expect one month for each year of service plus full benefits for that period.

In the potential case discussed if an employer directly approaches you and you give up a job for their job and then they let you go there is a further duty of care. Also it looks like the person invested considerably in moving to take the job.

I have no doubt there is a case but is it worth the trauma?

It really is up to the individual to decide after proper legal advice. Different courts have different costs, processes and timelines in different provinces.

Suing for me was no problem because I have time on my side, minimal costs associated, money in the bank, another job and confidence in my situation. It is however a bit of work at each stage as the employer has done everything they can to frustrate and slow down the process.

Aviator

A written contract can trump common law, however it cannot offer less than Employment Standards. This may vary if an employer tried to change the terms of a contract after hiring and force the employee to sign them or get fired. This of course would be a breach of ES as a change of work conditions.

Duty of care extends to an employees well being, not contracts of employment at the time of hiring. A potential employee does not have to sign a contract, if they don't like the terms they can walk away or try and renegotiate.

As has been stated, the employee is the only one who knows their circumstances and should make a decision based on sound legal advice rather than an internet forum.

neilg14

Truckers can legally drive for 13 hrs a day spread over 16 hrs if using a split break.
And truckers are causing every accident are they ?
What a stupid last paragraph.

scrubbedexpat091

That's where us low income earners get screwed, its either take a job and accept conditions you don't like, or not have a job at all. There is no room for negotiation, they are take it or leave it terms.

Aviator

Not sure anybody gets screwed. An employer offers a job and it is up to the individual if they accept the offer or not. If the conditions are not good and nobody accepts or turnover is high, often conditions change.

There are employers who offer fair remuneration for work done and those that perhaps do not. Likewise there are employees who earn what they get and those that take advantage. It is not employer/ employee, it is human nature.

If I offer a job, it is my prerogative what I am prepared to offer and pay for the work done. It's my business, my money, why should I not be able to spend it how I choose? If this choice were taken away from me, I would shut the door.

Many businesses look after their employees, it is in their interests to do so.

scrubbedexpat091

Business who pay low wages and in the types of jobs I do like many in these sorts of jobs, have no choice, we need a job and have to accept what is given to us, a good employer is far and few these days for this sort of category, and for many its cheaper to just have high turn over then to retain employees, treat them fairly, pay them fairly. (Wal-Mart is a good example)

I have yet in 17 years of being employed found any employer where one could negotiate anything, and its always been a take it or leave it situation and since I need a job, i never have any choice but to take what is offered, and its usually not desirable, but a job is a job.

Heck my current manager knows the turn over is creating major issues, and the pay isn't sufficient to attract people to the position, but corporate doesn't care, at the end of the day they don't care if you stay or go, they consider employees disposable.

It might be in your best interest to look after your employees, but this is not the norm for most employers who are using low skill workers.

helcat12

This is a bit of a side issue, perhaps, but I was a bit confused about the PR situation.
You said your friend got PR a while ago but had not used it because he was stable in the UK.
PR is no use as 'contingency' because you have to spend at least 3 out of every 5 years in Canada to maintain PR.

So how did he still have PR?