Why should I speak to a lawyer after I’ve been fired?Team
When an employee is dismissed, an employer has certain duties under the Employment Standards Act, 2000 (“ESA”) in Ontario, and similar laws in other provinces. Depending on the circumstances, a terminated employee may be offered a settlement or a severance package that adheres to the ESA. However, it is important to note that the ESA merely sets out the bare minimum standards to be met by employers. A terminated employee may be entitled to a greater settlement or compensation under the common law.
Any compensation that a terminated employee is entitled to will depend on the particular circumstances of the termination. Therefore, terminated employees should always consult a lawyer on the specificities of their termination as this may offer a better understanding of the available claims and their strengths.
What claims may be available to terminated employees?
When an employee is terminated an employer may disclose a reason for their decision. Based upon this disclosure, and the available facts, an employee’s termination may be classified under one or more of the following:
A terminated employee may make a claim for all of the above, except when they are terminated with just cause. An employee that is terminated with just cause is not entitled to a reasonable notice period.
Just cause can take many forms, and can include the following:
- Serious Misconduct
- A Pattern of Neglecting Duties
- Willful Disobedience of a Work Order
Contrary to popular opinion an employer is not legally required to disclose the reasons for an employee’s termination unless they are sued for wrongful dismissal and they have to make a case for just cause.
While the experience of termination may be unpleasant to revisit, it is nonetheless important to seek legal advice in such instances.
What claims are available to employees who have resigned?
If an employee’s decision to resign was induced by any fundamental changes to the employment agreement, then a claim for constructive dismissal may be available.
Without speaking to a lawyer about the circumstances surrounding a resignation, a terminated employee may not realize that they are owed termination entitlements under the ESA or the common law.
What entitlements are available?
According to the ESA, a terminated employee may be owed any of the following entitlements:
- A written notice period prior to termination
- Pay in lieu of a notice period
- A combination of a written notice period and pay in lieu
- Severance pay
ESA entitlements are minimum standards. Terminated employees may be offered and pressured to accept these minimums by their employers. In the absence of legal advice, an employee that accepts an offer may be foregoing a greater entitlement under the common law.
Whether an employee receives the minimum ESA entitlement or a greater amount under the common law will depend on the following employment factors:
- The nature and character of the employment
- The length of employment
- The age of the employee at termination
- The likelihood of finding similar employment
Assessing an employee’s common law entitlement requires knowledge of how similar cases have been treated and decided upon in court. An employment lawyer’s knowledge and experience with case law is an important resource that can be used to discern the merits of a wrongful dismissal claim.
While termination may be a common practice in the workplace, not all employees may have previous first-hand experience. It is likely that an employer will have more experience and knowledge with terminations than their employees. As such an unaware employee may be pressured to accept a termination settlement that does not contravene the ESA but is still lower than the common law entitlement.
Seeking out legal advice or a consultation with an employment lawyer is a prudent first step to making a claim for termination entitlements. Only after speaking with a lawyer can a terminated employee consider the available claims and their strengths.
If you have any questions about termination entitlements, our team of experienced employment and human rights 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 will be happy to assist.