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It’s another morning at work and through the elevator door that cries out for some grease, past that anxious infernal clock that runs too fast, the faint smell of bitter coffee and carpet freshener wafting in from the kitchen, where the muffled laughter of office banter begins to overcome the soft hum of the computers. You are home – away from home; warm, familiar and secure, until you see the note politely requesting you to attend an unscheduled meeting in the boss’ office. You never saw it coming.
Sure, there had been somber talk about belt-tightening, budget cuts, and downsizing at head office, which you cautiously regarded with slightly more interest than the latest cancer statistics or a hurricane in Florida. After all, what about that last promotion, the Christmas bonus and the report showing improvement over last year’s numbers that you carried around like a suit of armour, complete with rose-coloured glasses?
Fifteen minutes later you emerge from the final meeting a mass of aching, quivering emotion. For many, the initial shock and humiliation or the desire to strike back at your former employer is overwhelming and a wrongful termination lawyer can help. The usual dry apologies, best wishes for the future, half-hearted assurances that you will land on your feet strangely coming from the very people that took your family’s economic security.
The legal system is ready and willing to help those people suffering this misfortune. Ontario employment law in the last forty years has leaned dramatically in favour of the wrongfully dismissed employee. If an employee is dismissed in Canada for reasons of “restructuring”, “downsizing”, “lay-off” or other economic reasons, the real issue the law looks at is an employee’s age and position until they find a new job. The “rule of thumb” is for every year of service you are given one month’s warning (or pay instead of warning) before you are fired, plus all your employment benefits – just for starters.
However, COVID layoffs and dismissals have changed employment laws in Ontario. Complexity arises when the last forty years of employment laws come face to face with new employer rights under COVID legislations which tries to eliminate employee rights. Whose rights prevail in these circumstances of COVID layoffs? This issue has been before courts already. The Ontario courts have held that despite new powers of employers to enforce COVID layoffs under new COVID regulation it has to be done in a fair way. The governing law (the Employment Standards Act, 2000 or ‘ESA’), only permits layoffs or dismissals under narrow circumstances and judges have said that employees are vulnerable and must be protected. This is to say the courts are listening closely to Ontario employees and their unfair dismissal lawyers.
A great example of this is in Ristanovic v. Corma Inc. the employee had a layoff lawyer in Toronto who was successfully represented by Jordan Reiner – partner at Lecker & Associates. The worker was awarded 22 months in severance damages. The issue was whether the employees had a right to treat their lay-offs as one-sided changes in the conditions of their employment amounting to constructive dismissal (i.e., a fundamental breach of their employment contracts).
In the context of a wrongful covid dismissal Skowron v. ABC Technologies Inc. – another recent decision where the employee was successfully represented by wrongful termination lawyer Matthew Fisher – partner at Lecker & Associates. The employee was fired during the pandemic and the court was sympathetic. The Judge stated: “I have no indication that the job market for sixty-plus year old project engineers is particularly buoyant in Toronto during the third wave of the pandemic.” The Plaintiff was awarded the maximum of 24 months of notice.
The most benevolent employers will attempt to address unfair dismissals by engaging “relocation” counselling plans, often at very high cost per individual terminated employee. This is because the most effective defense that an employer can raise in any wrongful dismissal case is that the departing employee has found a comparable job before the end of the employee’s severance package. The employee is legally bound to exert all reasonable efforts to find a job. To most employees, after the shock of the dismissal wears off, the natural instinct to find a replacement to the income they had just lost is overwhelming.
The services provided by even the best of these old-style companies – resume preparation, provision of office contacts and equipment – are limited. In this day and age of working from home, the efforts and expense are wasted. The employee’s perception is always one of tokenism and resentment for an obviously half-hearted gesture. Moreover, there is always the suspicion that the companies are operating on the employer’s agenda, and not attuned to the dismissed employee’s real needs.
Lecker & Associates has practiced employment law for over 35 years as disability claims lawyers and wsib lawyers in Toronto. We exclusively represent employees of Ontario. Our team of employment lawyers have the knowledge, experience and ability to handle challenges that often surface in relationships between employees and their employers.