Employers are generally not legally required to provide warnings before terminating employees without cause. They can terminate employees without warning if they provide the appropriate notice or severance pay. Termination of employment without providing notice of dismissal, an inadequate amount of notice or payment in lieu of notice is considered a wrongful termination.
Termination without Cause vs. Termination for Cause
Employers can terminate employment in two ways: termination without cause and termination for cause. Termination without cause means they can fire you without providing a reason. What is required is for them to continue your compensation over a set period (based on your time with the business), which varies by province and jurisdiction. Ontario Employees must have worked for at least 89 days to get this entitlement.
Termination with cause is an employee’s immediate dismissal for committing a serious workplace offence or violation. Employees terminated for cause are not entitled to notice or severance pay. This also varies from province to province, but the standard is highest in Ontario. It is often difficult for employers to prove cause in a termination as they must demonstrate that the misconduct was so egregious it warrants summary termination. Essentially, you are kicked out of the business with no income protection, except your earned wages. In these scenarios, it is best to consult with an employment lawyer familiar with the complexities of this area. Employers and their human resources department are trained to be efficient, not up to date on legal technicalities, which frequently results in wrongful termination.
If an employer violates these employment statutes, regulations, employment contracts or engages in a harsh or demeaning workplace exit procedure, an employee can claim wrongful dismissal. At that point, depending on what is violated and how severely they are generally entitled to termination, severance pay and possibly other damages (compensation).
Canada’s Human Rights Act and Ontario’s Human Rights Code makes it illegal for companies to terminate staff based on discriminatory grounds, including race, gender, ethnicity, family commitments, illnesses, sexual orientation and religion. Even if you were fired for misconduct, you may still present evidence of a human rights violation that forms part of the wrongful termination. Those are very complex scenarios which we recommend you contact an employment law firm to help answer.
Severance Pay, Working Notice and Combination of Severance and Notice
In a without cause termination (i.e. corporate restructuring) an employee is legally entitled to full severance pay, working notice or a combination of notice and pay in lieu of notice once they are fired.
Full Severance
Severance is the compensation that a large Ontario employer (e.g. a payroll globally over $2.5 million) provides to a loyal employee who has lost their job. It aims to cover their financial needs until they secure alternative employment, but also meant to acknowledge their 5+ year service with the employer. The full amount payable is regulated by federal and provincial statutes.
Working Notice
As part of the exit package, employees may be offered the opportunity to continue working for a specified period, receiving full remuneration and benefits. Once this notice period concludes, their employment with the company is formally terminated. This arrangement is referred to as “working notice.”
Combination of Severance and Notice
A company may opt to give a terminated employee a combination of working notice and severance pay. An employee’s employment contract may limit, restrict or diminish their notice rights, so it’s in the employee’s interest to ensure that it meets the legal requirements. More often than not, these employment contracts are not enforceable against an employee because an employment lawyer has determined a legal loophole. An employment lawyer is in the best position to evaluate the accuracy and validity of a contract.
Severance: Should I Accept the First Offer?
The specific amount of severance an individual receives can differ based on their circumstances. However, the law guarantees a minimum amount. An employer cannot force you to accept the initial offer or impose a time limit for assessing your severance package, but frequently they do. Employees have a two-year timeframe start a lawsuit, so arrangements must be made to challenge or accept the severance package in that time.
If you were fired without cause and were not given proper severance, it may constitute wrongful termination. Before signing an employer’s offer, contact an experienced employment lawyer to help you determine what you are due.
Get Help with Your Wrongful Termination Case
If you have been wrongfully dismissed or have questions about your severance package, contact Lecker & Associates. Our team of employment lawyers has vast expertise in providing guidance to individuals regarding their entitlements upon termination and representing them in wrongful termination cases.
Call us at 416.223.5391 or complete our contact form to book a consultation.
