Employment Lawyer: Protecting Employees from All Workplace Issues

Table of Contents

• Wrongful Dismissal
• Severance Pay
• Pay in Lieu of Notice
• Harassment and Discrimination
• Constructive Dismissal

A common misconception about wrongful dismissal claims is that the employer must be forthright about the reason for the dismissal. Your employer does not have to give you a reason for your termination if you are terminated without cause. The reasons for your termination do not matter in such cases. The only thing that matters is that you were compensated properly for being terminated.

WHAT HAPPENS WHEN YOU ARE DISMISSED WITHOUT CAUSE

It is important to understand that being terminated/fired/dismissed is not the same as being “laid off”. A lay off is a separate legal concept that means you are being temporarily terminated with the intention to be brought back to work after a certain time period.

In situations where you have been laid off, you should ask for an expected date of return to employment. Sometimes your employer will not be able to give you a specific date. In such cases, you should track how long you are off work. It is possible that your lay off may become a termination depending on how long you are laid off.

The law applies different time periods to lay offs. You should consult with an employment lawyer to determine if you are properly laid off or whether your employment was terminated and you should have received termination pay.

Severance pay is a type of Termination Notice. If you are an employee of a company that is not unionized and you are terminated/dismissed “without cause” you are, generally speaking, entitled to notice in advance of your termination (also known as “working notice”). If you are terminated without notice, meaning you are asked to stop working immediately, then you are entitled to termination pay in lieu of notice.

Lots of different terms of thrown around when discussing termination pay, such as “severance” or “layoff” packages. In the employment law context, these terms mean very different things and it is important to consult with an employment lawyer to understand your entitlements.

Often, your employer will give you paperwork to read and sign which says you accept a payout package in exchange for giving up your right to sue. You may feel slightly overwhelmed with all the paperwork that your employer gives you to read. Feel free to give us a call for a free consultation.

It is important that you do not sign anything from your employer without seeking legal advice. The area of employment law is robust and there are a lot of things to take into consideration. Do not just accept your employers offer without considering the alternatives.

As your employment lawyers we will need to discuss more about your role at work, your experience at your workplace, your pay, the company you work for, and the events leading up to the termination. This will allow us to determine an appropriate amount of compensation for you for your termination. It may be that your company offers you a fair package and you don’t need to hire a lawyer. Often times, however, employers will try to save money and cut your termination pay significantly. They hope you do not appreciate the discount you are taking in your package.

You are only entitled to severance pay in specific circumstances. First, you must have worked for your employer for at least five years. Second, one of the following criteria must apply to your employer for you to be entitled to severance pay:

• You were one of 50 or more employees terminated by the employer within a 6-month period because your employer permanently discontinued their business;

OR

• Your employer has a payroll of $2.5 million or more.

If severance pay applies to your termination, you are entitled to 1-week of severance pay for each year of employment with the employer.

There are many other factors to consider before confirming if severance pay applies. We are happy to discuss all your options with you to determine your proper entitlements.

Pay in lieu of Notice is a type of Termination Notice. If you are an employee of a company that is not unionized and you are terminated/dismissed “without cause” you are, generally speaking, entitled to notice in advance of your termination (also known as “working notice”). If you are terminated without notice, meaning you are asked to stop working immediately, then you are entitled to termination pay in lieu of notice.

Lots of different terms of thrown around when discussing termination pay, such as “severance” or “layoff” packages. In the employment law context, these terms mean very different things and it is important to consult with an employment lawyer to understand your entitlements.

Often, your employer will give you paperwork to read and sign which says you accept a payout package in exchange for giving up your right to sue. You may feel slightly overwhelmed with all the paperwork that your employer gives you to read. Feel free to give us a call for a free consultation.

It is important that you do not sign anything from your employer without seeking legal advice. The area of employment law is robust and there are a lot of things to take into consideration. Do not just accept your employers offer without considering the alternatives.

As your employment lawyers we will need to discuss more about your role at work, your experience at your workplace, your pay, the company you work for, and the events leading up to the termination. 

This will allow us to determine an appropriate amount of compensation for you for your termination. It may be that your company offers you a fair package and you don’t need to hire a lawyer. Often times, however, employers will try to save money and cut your termination pay significantly. They hope you do not appreciate the discount you are taking in your package.

If you are terminated and not offered working notice, your employer must pay you for the  appropriate notice period instead. In other words, you should receive a salary for a certain amount of weeks equivalent to the working notice you should otherwise have received. This is known as pay in lieu of (instead of) notice.

The Employment Standards Act (“ESA”) is the legislation in Ontario that sets out the minimum amounts of pay in lieu of notice that employees are entitled to when terminated without cause. Generally speaking, under the ESA you are entitled to at least 1 week per year employed, up to a maximum of 8 weeks of pay.

However, the ESA minimum amounts do not always apply. You and your employer must have expressly agreed in writing in order for ESA minimums to apply.

When the ESA minimum notice periods do not apply, you are instead entitled to what is known as “common law notice.” Most the time, common law notice periods are far greater than the ESA minimums. Under the common law notice periods, you may be entitled to months, instead of weeks, of pay when terminated.

It is important to review your employment contract to understand whether the ESA minimum payments apply. Even if your employment contract includes a provision that says you are only entitled to ESA minimum standards, there is a chance that this contractual provision does not apply if it is not drafted very carefully and specifically. As your employment lawyers, we can review your employment contract and advise you on your potential entitlements.

D. Availability of Similar Employment

The more likely it is that a terminated employee will find similar employment elsewhere, the less notice that employee is likely to receive.

Employment positions that are highly specialized or require particular education, training, experience or skills are generally entitled to higher compensation.

Mitigation

If you have been terminated, you are required to take steps to minimize your losses and damages. This is known as “mitigation” and requires you to try to find another job as soon as possible.

If you fail to take any steps to find alternative employment, that inaction may be held against you and reduce your compensation to pay in lieu of notice. For example, even if you were entitled to compensation for 6 months of pay after your termination, but you failed to try to look for any jobs after being terminated, your compensation might be reduced to less than the 6 months.

For this reason it is crucial that you document all your efforts to find new employment. Keep a diary or record of things like your job applications and how many interviews you are offered.

Other Facts about Pay in Lieu of Notice

• There are no deadlines to accept termination packages or offers. If your employer gives you 24 hours, 2 weeks, or 2 months, it does not matter. You can take as long as reasonably needed to consider your options. Often times employers will impose a deadline to accept an offer to pressure you to make a decision quickly so that you do not seek legal advice.
• Employers may tell you that they have cause to terminate you as a reason not to pay you reasonable compensation on termination. Make sure you ask your employer whether your termination is “without cause” or “with cause”. If your employer tells you that they have cause, ask them for specifics.
• Under common law, you have 2 years from the date of termination to commence a legal claim against your employer for inadequate termination pay. Keep the 2 year limitation in mind before waiting too long to fight your employer on your termination.