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Labour & Employment Law:
For Employees

We represent exclusively employees in their disputes against employers. If your employment is wrongfully terminated or if you haven’t been provided with sufficient notice or pay after being terminated, contact us immediately.  

If you have been discriminated against or harassed at your workplace give us a call. We are happy to discuss your options and your rights before you make any final decisions.

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AREAS OF EMPLOYMENT LAW PRACTICE

1. WRONGFUL DISMISSAL 

What is a wrongful dismissal? This occurs when your employer fires or terminates you without giving you proper notice or pay in lieu of notice. As you may know, notice can be provided in the form of working notice or pay or some combination thereof.

There are many types of wrongful dismissal claims you might be able to advance, including:

  • If your employer terminates you with cause and pays you no or inadequate compensation, you can still dispute whether the reason the employer is relying on justified your termination. If your termination was not justified, you are entitled to notice or pay in lieu of notice.
  • If your employer terminates you without cause then they must pay you adequately for an appropriate notice period.
  • If your employer unilaterally, fundamentally changes your employment conditions or working environment, you may be entitled to quit and treat your employment as terminated, even if you were not officially fired. In such circumstances, you can still advance a wrongful dismissal claim.

COMMON MISCONCEPTIONS ABOUT WRONGFUL DISMISSAL CLAIMS

Employment Law - dismissed without cause

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.

2. SEVERANCE 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.

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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.

3. PAY IN LIEU OF NOTICE

Employment Law - Pay in Lieu of Notice

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.

Common Law Notice Factors

There are a number of factors that must be considered when determining how much common law notice you may receive, which includes the character of your employment; your length of service; your age at the time of termination; and availability of similar employment.

A. Character of Employment

The more senior your position at your company, the more compensation you may be entitled to receive. However, this is not as simple as comparing administrative positions to executive roles.

Other considerations include the nature of your duties, whether the business’s success depends on your level of contribution, the level of experience and skills you bring to the business, and other such factors surrounding how key of a role you play in the business operations.

B. Length of Service

It is a common misconception that under common law notice, an employee is entitled to receive 1 month of pay for every year employed. This is untrue. All factors are considered collectively together when determining common law notice entitlement.

However, the longer you have been employed with a company, the more pay you should receive.

C. Age

Older employees are naturally closer to the age of retirement than younger employees. This means older employees face additional hardship when terminated. For example, it is common for someone who is closer to age of retirement to have more difficulty finding a new position elsewhere. Accordingly, generally speaking older employees will receive more compensation upon termination.

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.

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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.

4. HARASSMENT AND DISCRIMINATION

As an employee you have the right to work in an environment that is free of bullying and harassment from other employees and from your employer. Harassment and bullying can be debilitating when imposed on a persistent basis. We spend about 40 hours a week, and sometimes more, at our workspaces. Being subject to harassment and discrimination can significantly impede our career growth. 

There are many examples of workplace harassment and discrimination. Some examples include:

  • Unwanted touching or violence
  • Discriminatory remarks or different treatment based on race, religion, sex, or age.
  • Threats and intimidation
  • Bullying
  • Sexual harassment
Badre Law - Workplace Harassment

In Ontario it is the Occupational Health and Safety Act that is the legislation people look to for these issues. It sets out our rights and duties in the workplace. It also sets out the procedures that need to be taken when it comes to workplace hazards. The Ontario Human Rights Code provides employees for a method to receive compensation if an employee is face with these issues. The goal of the Ontario Human Rights Code is to prevent harassment and discrimination based on disability, race, sex, etc. So, employees need to look to both statutes in order to determine whether they have a case.

Your employer has an obligation to provide a safe place for its employees to come to work so that employees have the right to feel comfortable in their environment. If there are any issues between the employer and employee or between employees then the employer has a further obligation to rectify the situation as expeditiously as possible so that individuals no longer feel unsafe. If an employer fails to keep a safe environment for its employees then it may be subject to fines and also forced to compensate the employee.

If you are facing workplace harassment or discrimination then you should know your rights. Do your research. Ask questions. You can consult with a lawyer to get a better appreciation of your options in your specific situation.

Unlike wrongful dismissal claims, you only have 1 year to start a discrimination claim if you feel you have been discriminated against.

Disabilities and Health Conditions

If you were injured or suffer from a disability that requires accommodation at work, your employer is obligated to accommodate you. In other words, your employer must take steps that make it possible for you to continue working in a way that appropriately considers your health concerns.

If you require accommodation, you must take the first step and inform your employer that you require changes to your work environment because of your injury or health concern. Your employer may require you to provide medical evidence of your need for an accommodation – this is normal and you should cooperate with your employer by giving them the information they need to properly accommodate your requests. 

Sometimes, an employer will tell you that they cannot accommodate your request. You should speak with a human rights or employer lawyer when this happens. We can advise you whether your employer has actually taken all the steps they are supposed to take to work with you in such circumstances.

5. CONSTRUCTIVE DISMISSAL

Constructive dismissal means your employer has imposed changes on you or your employment that force you to quit. Constructive dismissal also occurs when your employer creates or allows for the creation of a toxic environment which causes you to quit.

If there is constructive dismissal the employee is entitled to bring a wrongful dismissal claim as if the employer explicitly terminated their employment.

There are a variety of examples of constructive dismissal. Some examples include:

  • Reduced salary. Your employer cannot significantly reduce your pay for any reason.
  • Improper work environment. Your employer is not allowed to create an environment where you are uncomfortable and unable to work. This may cause you to quit and then you will have been constructively dismissed.
  • Work location. If your office, for example, moves so far away as to make it unreasonable for you to attend work then you may be constructively dismissed.
  • Change in work hours. This occurs when your work hours are significantly cut or increased or moved to different times of the day. You may be unable to accommodate this change and have to quit. In this case you have been constructively dismissed.
  • Failure to provide work. If your employer is not giving you any tasks or assignments, they are failing to satisfy their obligation. You are not obligated to sit at a desk for 8 hours per day doing nothing. If your employer does not want to give you work to do, you may be able to treat your employment as terminated and start a constructive dismissal claim.
Employment Law - Constructive Dismissal

Hopefully you will never be faced with a constructive dismissal. It is not a pleasant feeling to be treated by your employer that way. If you are faced with a constructive dismissal or feel as though you are about to be constructively dismissed then please do not hesitate to contact our office for a free consultation. We are happy to provide you with as much information you need.

Book a Consultation Or Call (613) 695-4443
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