Can My Employer “Un-fire” Me?achkarlaw-admin
Termination of employment can be anxiety-inducing for both employers and employees. For employees, they may be left feeling anxious about their future and may worry about obtaining reference letters, updating their resumes, and finding a new job.
As for employers, they may feel stressed about hiring a new candidate and training them for the job. Canada’s labour shortage problem makes it challenging for employers to find qualified candidates for various positions. It is not surprising that employers sometimes try to revoke employee dismissals.
Sometimes after terminating an employee, an employer may change their mind and wish to revoke an employee’s dismissal. Unsurprisingly, such an occurrence raises several questions.
For example, does the employment relationship end with employee dismissal? Can an employer revoke employee dismissal? What is the effect of such a revocation on the employment relationship? The article below will answer these questions and explain how an employment lawyer can help.
Does the Employment Relationship End with Employee Dismissal?
In Ontario, employee dismissals are either with or without cause. A dismissal with cause is when the employer has a defensible reason to terminate an employee’s employment without notice or severance. Cause can include patterns of repeated misconduct or single instances of misconduct that are so severe they make continued employment impossible.
In contrast, dismissal without cause allows an employer to terminate an employment contract at any point and for almost any reason, provided they give either proper notice or severance. Whether the termination is with or without cause, the employment relationship usually ends with an employee’s dismissal from the workplace.
After the termination of an employment relationship, an employer may only hire an employee back if the employee agrees. They cannot force the employee to return by simply revoking their dismissal if the termination has already taken effect.
A termination takes effect when the employee stops working or on the date mentioned in the termination letter. Once an employee stops working, they have the right to reject the employer’s re-employment offer.
An employee who rejects the employer’s offer of re-employment can consider themselves terminated and claim their termination entitlements, which may be substantial in some cases. For example, a dismissal without cause may entitle a terminated employee to claim approximately 1 month of notice or pay in lieu thereof for every year of service.
The dismissed employee may also accept the employer’s decision to un-fire them if they wish to continue working for the employer. In this case, the cancellation of termination puts the employee in the same position they would have been if their employment had never been terminated.
What Happens When the Employer Revokes the Employee Dismissal?
If the employee accepts the cancellation of their termination, they may treat their employment relationship as continuing. Employees are entitled to the same salary and benefits they were receiving before the revocation of their termination. Further, the re-employed employee also maintains their seniority in the workplace.
However, the situation may become tricky if there is a significant gap between the original termination date and the date the termination was revoked. In this case, the terminated employee should discuss the effect of un-firing on their employment with their employer before accepting re-employment.
Sometimes employers treat the re-employment as a new offer of employment to shorten the re-employed worker’s length of service and impact the employee’s seniority. This is because employees with longer service are usually entitled to longer notice periods on termination.
Employees contemplating an employer’s offer of re-employment should get written confirmation from the employer regarding the continuity of service. Employees may also ask the employer to credit any gap in their years of service towards their total length of employment.
How an Employment Lawyer Can Help
Both employers and employees can benefit from seeking advice from an employment lawyer regarding the effect of revoking an employee’s dismissal. Their unique skills and expertise in employment law can help determine your rights and entitlements.
Employers may benefit from the employment lawyer’s advice when they seek to rehire an employee. The employment lawyer can advise you on your obligations towards the rehired employee and protect you from assuming unwanted liabilities. They can draft or review the employment agreement to ensure it specifies whether you are offering new employment to the employee or continuing their employment.
If you are an employee who was recently terminated, you should have an employment lawyer examine your severance offer. Often, employees rush to accept any severance and termination package their employer offers. Consequently, they walk away with much less than their entitlements and sign away their right to sue for more.
A knowledgeable employment lawyer can help determine if your employer offered a fair and adequate severance or termination package. They will negotiate with your employer to help you get the severance package you deserve.
Further, if your employer wants to cancel your termination of employment, an employment lawyer can advise you on your best next steps. They can help you understand your legal entitlements and negotiate with your employer. They can ensure you do not mistakenly sign away a significant portion of your tenure by accepting re-employment.
In Ontario, an employer can dismiss an employee at any time for almost any reason, so long as they provide reasonable notice or pay in lieu thereof. The employment relationship usually comes to an end on termination of employment, and the employer must pay the employee their termination entitlements.
If the employer terminates an employee’s employment and later reverses the decision, they may only do so with the employee’s consent. Employees may choose not to return to their job and instead claim termination entitlements. On the other hand, if the employee accepts the employer’s decision to un-fire them, they may treat their employment as continuous for all intents and purposes.
However, employees should be careful while accepting an offer of re-employment after a significant gap in service. Sometimes, the employer may treat the re-employment as new employment, effectively reducing the employee’s length of service.
Every case turns on its own facts and circumstances. An employment lawyer has the necessary knowledge and skills to advise employers and employees regarding their rights and obligations based on their unique circumstances.
If you are an employer looking to un-fire a worker or an employee considering an offer of re-employment by a previous employer, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected], and we would be happy to assist.
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