Co-Authors Kimberley Sebag and Bram Lecker
Filing A Claim With The Labour Board
In Ontario, the Employment Standards Act, 2000 (ESA) governs the rules organizations must follow when they engage employees and service providers. The ESA also stipulates clear minimum standards for employee terminations. If your employer ended your employment and you believe your termination package is inadequate, you have two avenues to seek resolution. One of them involves filing a claim with the Ministry of Labour, commonly referred to as the Labour Board. And the other process requires the services of an employment lawyer. You can file a Labour Board claim on-line and the process is free. However, before proceeding down this route, you must clearly understand the limitations associated with this choice.
Employment Law and Terminations
Our law-makers recognize the significance of long-term and secure jobs. At the micro level, a sudden loss of income can drastically impact individuals and families. However, on a macro level, they sway society at large and directly affect our economy. Consequently, our employment laws lean on the side of employees when it comes to job terminations. Your employer can rightfully dismiss you for any number of reasons. But the ESA requires them to properly and adequately compensate you for their decision.
Usually, a job loss leaves many people shell shocked and unsure of what to do next. You may also experience anger and resentment towards your employer. However, what you really must focus on, at this stage, is the value of your termination package. Ask yourself whether your employer dismissed you fairly and respectfully. And, if so, does your severance package fairly cover your loss? Will it help you ride out the upcoming weeks and months of unemployment? If the answer to any of these questions is no, then you may have a case for wrongful dismissal. It does not matter whether you were terminated for no reason or for-cause. Your employer has very little leeway to fire you without compensation.
Is The Minimum Enough?
The ESA stipulates the minimum amount your employer must pay for a no-cause dismissal. Currently, you are entitled to one week of notice or payment in lieu of notice, for every year of service, up to a maximum of eight weeks. For example, if you worked for 4 years, your employer must provide you with at least 4 weeks notice of your termination or the equivalent amount in pay. In addition, the law expects more from larger organizations. They would owe you severance pay along with termination notice or pay.
However, that is not where the meter stops. Your termination and severance packages represent a financial bridge for you to manage your affairs during your job search. Our laws clearly recognize the inadequacy of ESA minimums for some individuals. This is where common laws come into play. They are a set of judge-made laws that offer an additional layer of compensation for terminated workers. The amount depends entirely on your circumstances which include your age, length of service, the position you held when you were let go and the availability of equivalent jobs in the market. If you are a mature worker in an industry experiencing rapid changes and where equivalent jobs are disappearing, then Common Law affords you significantly more compensation than the minimums stipulated in the ESA.
Limitations of a Labour Board Claim
And therein lies the problem with a Labour Board claim. While it is inexpensive to file and relatively simple to complete, these proceedings allow you to recover termination pay owed under the ESA only. They do not include extra compensation you might qualify to receive under Common Law.
Once filed, the Ministry of Labour will assign an Employment Standards Officer to review your claim, investigate it and reach a decision. If you do not agree with the findings, you can appeal to the Ontario Labour Relations Board. This process works well for simple and straightforward cases. But tenured employees, senior managers or those dismissed under grossly unfair terms cannot hope to recover extra entitlements. Examples include punitive damages for pain and suffering or outplacement services to help you change careers. Common Law even affords you continuation of health care coverage through your notice period. However, a Labour Board claim will not consider anything beyond the ESA minimums. In fact, the Ministry will not issue orders for any notice and severance entitlements boyond $10,000. And finally, a Labour Board claim bars you from pursuing further legal action against your employer two weeks after filing.
Ontario Human Rights Tribunal
In parallel style, you can take a case of discrimination directly to the Ontario Human Rights Tribunal who will assign an investigator to assess your matter. If successful, you could receive compensation for your pain and suffering however, it may not cover amounts for lost wages, severance pay, bonuses etc.
Hiring an Employment Lawyer
You should always seek the advice of an employment lawyer in the face of a problem at work or a job loss. When you start the process with us, an experienced member of our team will conduct a complimentary over-the-phone assessment. We might ask questions about your circumstances to determine whether we can help. For example, in the event of a termination, we will try to determine if common law entitlements apply. If it is not, then we will refer you directly to the Labour Board.
On the other hand, if your circumstances are complex, we will invite you to book a one-hour session with our lawyers to review the your circumstances. With terminations, we generally find that employers address Common Law entitlements rather inadequately, counting on your ignorance about the subject. This is where you stand to benefit from our 35+ years of experience. We will only take on your case if we feel we can negotiate better terms than what your employer has offered.
Legal Fees
The main reason why most people avoid seeing an employment lawyer are the legal fees. They worry about long drawn out legal battles against employers who may have deeper pockets. However, many wrongful dismissal cases lend themselves well for resolution through the Summary Judgement process. Back in 1985, we paved the way to a fast, cost-effective legal solution that leveled the playing field for employees. Today, the very mention of summary judgement can spur some employers to settle cases quickly. We are old hands at this game and can advise if your case is a suitable candidate.
Legal fees should never deter anyone from seeking justice to obtain what is lawfully theirs. This is especially true for matters that affect you daily, such as your employment. In fact, legal fees should be one of several factors to consider when selecting your team of employment lawyers. Here are 5 tips for selecting an employment lawyer to help you vet them for their years of experience, efficiencies, chances of success, area of specialty as well as communication style.
Lecker & Associates exclusively represent employees of Ontario. Negotiating terms for Wrongful Dismissal cases remain a cornerstone of our practice. Our experience has taken us through all levels of Provincial courts as well as the Supreme Court of Canada. We can likely assist you better than most. Contact us.
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