Saba Khan Law

Super excited to share that I have joined Seneca College as a part-time professor, teaching Employment Law to future HR professionals.

I am looking forward to enriching my lectures with stories and insights from my experiences as an employment and human rights lawyer. Here’s to a semester of lots of engaging chats and learning moments with my students.

What happens to an unpaid bonus upon termination from employment?

A commonly asked question by my employee clients. Do you need to provide a doctor’s note to your employer?

Supporting clients when they need it most is key. Here is what our clients have to say.

I have had too many employee clients lately who were terminated while on maternity leave. It’s really important to understand your rights to termination pay and potentially additional damages for being dismissed while on a job-protected leave.

The Occupational Health and Safety Act is a key piece of legislation to keep in mind when advising employer clients. There are critical obligations an employer has when navigating complaints of workplace harassment, including the duty to investigate and to not reprise against the complainant.

The importance of having solid employment agreements cannot be overstated. In particular, two key benefits stand out from an employer's perspective:

1. Firstly, employment agreements bring clarity and consistency to the employer-employee relationship. They outline the terms of employment, like roles, responsibilities, and compensation, reducing misunderstanding and creating a clear framework for both parties.

2. Secondly, these agreements provide legal protection. An enforceable termination clause, for instance, can significantly mitigate the risk of paying substantial termination pay. With such a clause in place, you can limit termination pay to the Employment Standards Act (ESA) minimums rather than potentially paying out months of salary. Moreover, clauses like non-disclosure and non-compete provisions protect your company's proprietary information and competitiveness.

An employment agreement is not merely a document; it's a fundamental tool for managing real risk and setting clear expectations in the employment relationship.

In my practice as an employment lawyer, I recently came across a compelling case that profoundly highlights the importance of employers demonstrating good faith and respect towards their employees.

Consider the case of my client, an exceptional employee, whose work performance was consistently above par, and who found herself in a difficult personal situation. She was specifically chosen by her employer for her role and swiftly became an integral part of the team. However, life took a tragic turn when she learned of her father's critical illness overseas.

With utmost transparency, she communicated her situation to her employer and availed family caregiver leave to be with her ailing father. Shockingly, she was abruptly dismissed from her job on the grounds of "job abandonment." Despite her earnest attempts to rectify the misunderstanding, her employer remained unapproachable.

Caught between her critically ill father and her professional obligations, she rushed back to Canada, only to be met with the heartbreaking news of her father's demise. The dual trauma of losing her father and her job had a severe impact on her mental health.

This case serves as a stark reminder of the type of conduct employers must conscientiously avoid. Despite the employee's relatively short tenure (a few months) and administrative role, we were able to secure a substantial, tax-free settlement in the form of general damages.

The takeaway here is clear: treating your employees with respect and good faith is not just a legal obligation—it's a fundamental aspect of human decency, and maintaining a respectful and productive workplace.

Thoroughness, empathy, and clarity when navigating the complex waters of employment law are qualities that we strive for. In every interaction, we're reminded to never make clients feel rushed but to ensure they feel heard and understood.

Earlier this week, we were able to secure a settlement for our client that was 13x more than what they were initially offered. I find that negotiation success hinges on tact, skill & emotional intelligence, rather than aggression. Some may believe the "bulldog" lawyering approach yields favorable results. Personally, I find that it often escalates tensions, incites emotional reactions, and detracts from the clients' best interests and amicable resolutions. Patience and focus on the end goal are vital.

The last ten nights of Ramadan are of significant importance to Muslims. These nights are considered to be the most blessed nights of the year. Muslims seek spiritual elevation and increased acts of worship, which may affect their energy and focus at work.

Employers in Ontario can accommodate and create a more inclusive workplace for employees observing Ramadan with these two key actions:

1. Flexibility in working hours: Consider adjusting work hours or offering flexible arrangements, recognizing that fasting employees will likely experience fatigue and lower productivity. Be mindful that Muslims' daily schedules are affected during Ramadan, with dawn and dusk being key times spent with family, breaking fast, and attending night prayers. After a day of fasting, during the last ten nights, many Muslims attend prayers at local mosques between 9 pm and 11 pm and again from 2 am to 4 am, further emphasizing the need for flexibility.

2. Provide a designated prayer space: Allocate a quiet, private space for employees to perform their prayers, especially during the last ten nights when additional prayers are observed.

By implementing these simple steps, employers can foster an inclusive and supportive environment, helping Muslim employees balance their spiritual and professional commitments during this significant period.

Terminating a client for cause without sufficient evidence can be costly for employers, as it may result in legal action. You might ask, why would an employer terminate an employee for cause without exercising appropriate caution and due diligence? Some employers take this position to avoid paying hefty termination entitlements and hope the employee won't seek legal advice. Bad advice from employment counsel could also be a factor. Employers must ensure they have sufficient evidence and receive appropriate advice from their counsel before taking action against an employee to avoid incurring greater costs later on while attempting to save money in the short term. It is crucial to take a measured and informed approach when considering disciplinary action against an employee, especially one with long service.

I have had several discussions with my employer clients in the last few weeks regarding the duty to accommodate. In some cases, their employee is refusing to provide medical documentation for sick leave or appropriate documentation for the accommodation they are seeking on the basis of a medical condition.

The Ontario Human Rights Code requires employers to accommodate employees with disabilities, religious beliefs, family status, and other protected grounds to the point of undue hardship. This means that employers must remove barriers that prevent employees from participating fully in their workplace. Accommodations may include modifying work schedules, providing assistive devices, and making physical changes to the workplace. Undue hardship under the Ontario Human Rights Code is a limit to an employer's duty to accommodate that arises when accommodation would cause significant difficulty or expense.

What employees often forget is that the duty to accommodate is a "two-way street." Employees also have a responsibility to participate in the accommodation process by providing information about their needs, suggesting possible solutions, and cooperating with the employer's efforts to find appropriate accommodations. For example, if an employee is seeking accommodation for a disability or requesting sick leave, they should be prepared to provide appropriate documentation to their employer substantiating that a medical condition exists for which the employee’s absence and/or accommodation is required.

If the employer makes reasonable efforts to accommodate an employee and the employee refuses to cooperate, the employer may not be liable for discrimination under the Code. As an employer, the key is to track your accommodation efforts and the employee's response, should it come into question in the future.

How much notice pay are you entitled to if terminated without cause?

I often get asked whether discriminatory practices are still prevalent in the workplace despite the existence of the Ontario Human Rights Code. Yes, they are. Recently, one of my clients was terminated a few days after informing her employer of her pregnancy, highlighting the continued issue of discrimination in Ontario. Do employers realize they are acting in violation of the Code? Yes, they understand the legal risks but are willing to take the risk and pay the price if and when an employment lawyer gets involved.

Fortunately, we were able to negotiate a settlement for my client that was three times higher than what the employer initially offered her upon termination and that too, with a large portion being characterized as general damages (tax-free damages for injury to dignity, feelings, and self-respect, paid by employers when they acknowledge that there was wrongdoing and a violation of human rights on their part).

One of the main challenges in addressing discrimination in the workplace is that it is often implicit and discreet. Employers may not overtly state their reasoning for termination, but with the right legal support and right questions being asked, it becomes evident that discrimination was at play. Factors such as gender, race, age, and disability can all be used as a basis for discrimination.

While the Ontario Human Rights Code has made progress in combatting workplace discrimination, it remains a significant issue. Employers are aware of the risks associated with discriminatory practices but still take the gamble, hoping that employees lack the resources to pursue legal action.

Top 5 tips for if your employment is terminated.

Saba Khan Law on TikTok Top 5 tips from an employment lawyer for someone who gets terminated from employment.