Xmas – T’is The Season to be Fired | Author: Bram Lecker
T’is The Season To Be Fired
Everyone is imbued with the holiday spirit this time of year. Everyone it seems, except large corporate employers. In our experience during the festive season, precisely 6 weeks before the end of the year, more pink slips are handed out than any other period in the calendar year. They fly out like confetti at a Santa Clause parade. So once again we note, t’is the season to be fired.
Two theories abound. First, this is when fiscal planning for the following year happens. Benevolent employers pick this period to inform their departing employees of the bad news because it allows the unfortunate candidates an opportunity to manage their finances accordingly, before they start their holiday shopping. A second, more cynical view generally held by employment lawyers, is that some employers believe this is how they can avoid paying out year-end bonuses. Regardless of the reason, the timing is particularly odious.
If you have been let go without cause, you are entitled to severance, no matter what. The question is how much. And that depends largely on your length of service, age and position. Whatever your profile, severance is based on all income, including benefits. And, contrary to popular wisdom, bonuses earned for work performed during the year must be paid out, whether you are there on December 31st, or not.
Your Rights and Entitlements When you Get Fired
Wrongful Dismissal: Calculating Notice and Severance
Your employer can fire you for cause or not-for-cause. Our laws stipulate the minimum notice and severance you should receive from your employer during a job termination. In addition, you are also entitled to fair compensation. This is an additional determination made through common laws, a set of judge-made laws that are based on precedents. They require your employer to compensate you with more than the minimum when your circumstances call for it. In wrongful dismissal cases, our lawyers are well equipped to make these calculations to ensure you receive your full entitlements.
Fired without Notice and Severance
The law is clear about termination pay, yet many employers let their employees go without any compensation. They justify this in many ways. Some attempt to limit your rights through employment contracts or by classifying you as a contract worker. But the fact remains, employers have very little leeway to fire you without adequate compensation. Even when there is an allegation for cause, they must pay your termination and severance entitlements unless they meet the very high standards of proof for a willful misconduct on your part.
Constructive dismissal is a very unfortunate by-product of an employment relationship gone sour. In this situation, while your employer does not fire you, the conditions at work are so intolerable that you resign, unwillingly. Obvious examples include workplace harassment, bullying, an unreasonable work load or a toxic work environment. However, employers can also create situations that trigger a constructive dismissal by making unilateral changes to your compensation package or terms of employment,
Layoff or Termination? Legally they Differ
Mass job losses make headline news. Some of the largest employers in Ontario are undergoing closure, restructuring or staff reduction. Sears and Loblaws are the most recent candidates in this line-up of retail giants that also include Target, Fedex, Sony, Mexx etc. When reporting on such stories, the media often use the terms layoff and termination interchangeably. Yet in fact, there is a real and tangible legal difference between the two. Your rights and entitlements differ in both, as well.
We cannot stand in for Santa Claus. However, we can help if you are unexpectedly terminated from your employment during the holiday season. We can review your compensation package to ensure it is fair. And if not, we are well equipped to represent your rights to get your full entitlements for you, from your employer.
We wish you a safe and healthy holiday season.