At Affinity Law, our employment lawyers in Toronto and the GTA counsel and represent clients who feel that they have been wrongfully or unjustly terminated or dismissed, which is the most common complaint among our employment law clients. To understand what it means to be unjustly terminated requires some basic understanding of the applicable employment law in Ontario.
Many of the rules and laws pertaining to employment and termination are found in the Employment Standards Act, 2000 (ESA), which sets forth minimum standards under which all employers must abide. An employee may have additional and greater protections under legislative or common law, or within their employment contracts or employee handbook.
Most terminations are lawful because an employer may simply not have liked you or felt you were not being as productive as you should. If you are terminated within the first 3-months of your employment, many of the protections afforded longer term employees may not be available to you.
But if you have been continuously employed for 3-months or longer, your employer may fire you for just cause. But if no cause is given, then your employer can lawfully terminate you in two ways:
- You are given proper written notice of termination
- You are given proper written notice of termination
The termination notice and the number of weeks of termination pay has to equal the length of notice your employer must give. Along with severance pay, you may be entitled to termination pay and vacation pay in accordance with the ESA.
What is Just Cause for Termination?
If you are dismissed for just cause, then the employer does not want to give you reasonable notice or pay in lieu of notice and does not need to if it is credible.
Just cause for termination can be serious misconduct, disobedience, or material willful neglect of duty that has not been condoned by the employer. Other examples are employees on temporary layoff or who refuse reasonable alternative employment. The termination letter for just cause must state the details of the conduct, the position of the employer and whether or not the just cause is being alleged by the employer.
What Constitutes Wrongful Dismissal?
Wrongful dismissals are generally for the following reasons:
- You were not given the proper notification
- You were not given the proper severance pay
- Your employer neglected to follow the termination procedures set forth in your contract or employee handbook
- You were fired for a discriminatory reason—age, gender, race, sexual orientation, religion, nationality
- You were dismissed after filing a complaint of discrimination or you cooperated with an investigation filed by another employee regarding discrimination
- You were dismissed for refusing to work in excess of the daily or weekly maximum hours, or for taking a leave of absence specified in the ESA
- No just cause was given, or it was for prior conduct that the employer condoned
You might also have been wrongfully terminated without cause in a situation where your employer did allege just cause for misconduct but failed to engage in progressive discipline. This refers to situations where an employer may be required to give warnings and allow the employer to remedy the misconduct. Another situation may be where the just cause alleged by your employer for terminating you was incompetence. This alone, however, may not constitute just cause and may form the basis for a wrongful dismissal cause of action.
This is a complex aspect of unjust dismissal. Your employer may have taken steps to force you to resign by making material changes to the terms and conditions of your work such as a significant reduction in salary, re-locating you, reducing your authority, changing your hours, or engaging in abusive or harassing conduct. Further, your employer cannot suggest that you resign or face certain consequences if you do not, or force you to waive your rights to compensation.
To allege constructive dismissal, you must resign from your employment within a reasonable time after the changes have been implemented or after the abusive conduct began.
What is Reasonable Written Notice?
What constitutes reasonable notice to a terminated employee depends on a variety of factors. Factors affecting or increasing reasonable notice in your particular case may be:
- You were persuaded to leave another position and then dismissed shortly thereafter
- The employer acted in bad faith in dismissing you
- The employer acted to cast you in a bad light so as to make it difficult for you to find other employment
- Your position was highly skilled or specialized
In most cases, the length of time you have been continuously employed determines the amount of notice required. For instance, if you worked less than one year, you are entitled to at least one week’s notice. If your employment was at least 8-years, then 8 weeks’ notice may be reasonable in light of other circumstances that may dictate a longer notice.
Notice of your termination must be addressed to and delivered to you personally by regular mail, email, or by fax, and be verified. If your employment is subject to a collective bargaining agreement or contract that provides seniority rights that allows an employee who is to be
terminated to displace another employee, the notice must be posted in the workplace with the names of those employees to be terminated and the effective date.
What is Termination Pay?
In lieu of receiving a written notice, an employer may simply give the employee termination pay, which is a lump sum payment equal to the regular work week wages that the terminated employee would have earned during the notice period. This must include vacation pay. Employers must also continue to make contributions to whatever benefits the employee would be entitled had the employee continued to work during the notice period.
Termination pay must be provided 7-days after the person’s employment is terminated or by the next regular pay date, whichever is later.
It is important to recognize that the rules regarding termination under the ESA are minimum requirements. Your own employment situation may be dictated by other legislation and common law that may give you greater rights.
Also, be aware that you cannot sue your employer for wrongful dismissal and also file a claim for termination or severance pay with the Ministry of Labour. You may only choose one option.
If you feel that you were wrongfully terminated from your employment, or have other work-related issues affecting your employment, consult with a Toronto wrongful dismissal lawyer at Affinity Law about your rights and what legal options are available to you.