Generally, a wrongful dismissal case is about whether your severance pay or notice was fair and reasonable for your circumstances. Under the law, your employer must provide you with income and benefit protection when they fire you. The only exception is when they let you go for just cause. Examples include theft, insubordination, intoxication while on duty, etc. In these circumstances, your employer must also prove the allegation and the bar for this burden of proof is set very high.
All other reasons for a termination, including economic downturn, layoff, shortage of work etc., mean the same thing: Termination without cause. With this, your employer must offer you adequate working notice or monetary compensation.
Across the country, federal and provincial laws generally favour employees in this matter. This is because a sudden loss of income can be very hard on individuals and families. Your employer must step into this situation carefully. When they make the decision to fire you, they must also make every effort to ease your financial burden. During the notice period you should continue to receive your full salary and benefits.
Termination Without Notice
Some employers opt to terminate employees without cause and also without notice. From their perspective this makes for a cleaner break. Under certain circumstances, this is perfectly legal as long as they also offer you equivalent severance pay in lieu of this notice. It must sufficiently cover your income loss for a reasonable amount of time until you find another job. This is a bridge, constituted by law, to allow you to manage your finances between jobs.
In this matter, the Government of Ontario protects employees on two levels. The Employment Standards Act 2000 sets out the minimum notice period or severance pay in lieu. On top of that, if your employer lets you go without cause then the calculation of this notice or severance can be higher. The majority of wrongful dismissal cases we handle involve exactly this determination.
Calculating Severance for Wrongful Dismissal.
For well over 35 years, our team of employment lawyers have successfully contested thousands of wrongful dismissal cases. This wealth of experience allows us to effectively assess the circumstances of your termination to determine if your severance is fair.
We look at four basic issues: Your age, your position, length of service and how long it will take you to find another job.
If you are close to retirement and at a senior point in your career, chances are you will have some challenges landing an equivalent job quickly. And in this case, your severance should be much higher than the minimum set out in the ESA 2000. In addition to your salary, we review your entire compensation package when estimating these calculations. This includes your health benefits, bonuses, automobile allowances, commissions etc.
Furthermore, some egregious circumstances could qualify you for additional lump sum “moral damages”. We draw a clear line in the sand for battling your employer if you were fired after announcing your pregnancy or shortly after returning from sick leave. Similarly, we would seek higher damages for you if you were harassed, bullied and treated poorly prior to your firing; for example, if you were frog-marched out of the door. Ontario courts frown at bad faith dismissals like these.
Don’t Overlook the Intangibles
The most noteworthy part of our experience in wrongful dismissal cases lays in the numerous “intangible” value-added services we can negotiate for you. Some employers are reluctant to provide reference letters. Furthermore, if you have been at the same job for many years, you will need a leg up with your job search. A career coach can be a most useful partner through this journey; they would provide you with proper support with your job search, assist with contract negotiations and ensure you are properly on-boarded at your new job. Outplacement consultation services are expensive. Our negotiating experience ensures you do not miss out on such opportunities.
Contract Workers and Wrongful Dismissal
Precarious employment is on the rise and it is changing our society in many ways. A growing number of adults across Canada face uncertainty with their employment. It is not unusual for individuals to work at multiple temporary, part time and freelance jobs to make ends meet.
Early in 2016, our lawyers won a precedent setting Dependent Contractor case. Not only did it help clear up the difference between the status of employees and contractors, we also shed light on the fact that there are indeed, two types of contract workers. Some are independent, operating like businesses and others are very dependent on their employer, not unlike employees. This was an important case. Since then, there has been a groundswell in similar lawsuits filed by contract workers who were hired as contractors and then dismissed without severance. And it has forced the Government of Ontario to finally deal with this burgeoning problem.
When you understand your rights, you gain the power to level the playing field with your employer. Lecker & Associates is one of very few employment lawyers in Toronto who exclusively represent employees. In the event of a wrongful dismissal, we have the experience, knowledge and ability to ensure you end up with the best possible severance package reflective of your circumstances. Call us for a review of your case.
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