3 Things to Look for After Being Terminated From Your Employmentachkarlaw-admin
Job termination causes stress to many people. It may seem as though there are many changes at once. The terminated employee may not be sure about their entitlements or how to best protect their own interests.
When facing dismissal, there are three important features to look for. This article goes into those three items in more detail and explains how an employment lawyer can help.
Was There Just Cause?
The first thing an employee should check is whether their employer is dismissing their employment with or without cause. The distinction is important since the employee’s termination entitlements depend on the type of dismissal.
If the employer labels the dismissal as “for cause” or with “just cause”, then the employer is relying on a reason or several reasons, for immediate dismissal. An employee dismissed for cause may be denied most if not all their severance entitlements.
Reasons for just cause typically include:
- intentional and negligent misconduct
- serious acts of dishonesty
- insubordination, absenteeism
- other employer behaviour that irreparable damages the employment relationship.
Just cause has a very high threshold of proof, since the employee would be denied most if not all their severance pay as a result.
An employer is not obligated to provide an employee with any reason for dismissal if they are terminated without cause. However, they must provide them sufficient notice or pay in lieu of notice. If an employer’s allegation of cause was determined to be insufficient, then the employee’s termination is considered without cause.
Did Your Employer Provide You Enough Notice?
When dismissed “without cause”, it is important to check whether an employer provided the employment sufficient working notice or pay in lieu of such notice. An employment lawyer can help you understand your legal entitlements unique to the circumstances of your termination.
In Ontario, an employee dismissed without cause is entitled to their Employment Standards Act, 2000 (“ESA”) minimum termination pay. For an employee who has worked at least three months, the minimum amount of notice they are entitled to receive is one week. The employee’s minimum notice pay increases by one week for each completed year of employment, up to eight weeks.
Employers who terminate employees without cause must pay statutory severance pay under the ESA, calculated at one week per year of service, up to a maximum of 26 weeks. This will usually require an employee to have at least five years of service with an employer who has an annual employee payroll of at least two-and-a-half million.
Enforceable Termination Clause
Finally, employees without an enforceable termination clause restricting their entitlements upon termination are entitled to common law reasonable notice. The length or amount of common law reasonable notice an employer owes their employee depends on what are known as the Bardal factors.
The courts consider the following Bardal factors and any other relevant contextual considerations:
- The nature and character of the employment;
- The length of service;
- The age of the employee; and
- Other factors affecting how long it would take the employee to secure comparable employment, including the state of the economy and the labour market.
Reasonable notice pay includes an employee’s minimum statutory entitlements, but can be as high as a total of 24 months’ of pay or more in exceptional cases.
“If an employer dismisses you without sufficient cause and fails to provide sufficient notice or payment in lieu of notice, you may have a claim for wrongful dismissal. This is a civil claim you may commence through the Ontario Superior Court of Justice.
While severance is an important consideration, employees should be mindful that the unique circumstances of their their termination may entitle them to additional damages for:
- An employer’s bad faith conduct in the manner of termination;
- Violations of the Ontario Human Rights Code (“Code”); and
- Violations of the Ontario Occupational Health and Safety Act (“OHSA”).
If you have been dismissed and have questions regarding your termination package, an experienced employment litigation lawyer can assist. A lawyer can also help you understand the full scope of your available legal entitlements, and represent you in negotiations with your employer to maximize the value of your termination package.
Are You Asked to Sign a Release?
You should note whether your employer has asked you to sign any documents on dismissal. An employer may offer you additional monetary amounts in exchange for a Full and Final Release of all legal claims you may have against that employer. This includes legal claims for severance and other employment related damages.
It is imperative you do not sign any Full and Final Release before reviewing an employer’s severance offer with an employment lawyer. You are not required to sign the Full and Final Release and should always seek independent legal advice. Signing a Full and Final Release without legal advice or under pressure may make it unenforceable.
When an employer dismisses an employee, there are three important things for an employee to look for:
- Whether the dismissal is with or without cause;
- If the dismissal is without cause, whether the employer provided sufficient working notice or severance pay to the employee; and
- Whether the employer is making a termination offer in exchange for a Full and Final Release of legal claims by the employee.
If you are an employee who was recently terminated, speaking with an employment lawyer to understand your legal entitlements is important. You may have claims in addition to severance, including additional damages for bad faith conduct, violations of the Code, or violations of OHSA. An employment lawyer can also help you negotiate for a better severance package, and to navigate the legal process to achieve your desired result.
If you are an employee with questions about the termination of your employment, and pursuing your legal entitlements, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone 1-800-771-7882 or mail to: [email protected], and we will be happy to assist.
- How to Calculate Wrongful Dismissal Damages
- Dismissal Without Cause in Ontario
- What Situations Create A “Wrongful Dismissal”?
- Wrongful Dismissals: Steps of A Lawsuit in Ontario