Willful Misconduct: Fired Without Notice and Severance Pay

Willful Misconduct: Fired Without Notice and Severance | Co Authors: Bram Lecker & Simon Pelsmakher, Student-at-Law.

Willful Misconduct: Fired Without Notice and Severance

Every employee who is terminated in Canada is entitled to minimum notice and severance. While the amounts differ in each province, they generally depend on your length of service and the size of your employer’s payroll. The only reason why you could get fired without notice and severance is a for-cause dismissal with proof of willful misconduct.  And when this happens, your employer’s case better be locked down, airtight.

If you find yourself fired without notice and severance then get your first response ready. You will need to select a good employment lawyer to represent you. The team of lawyers at Lecker & Associates are veterans at litigating such cases. Over our 35+ years of practicing employment law, we have encountered various tactics some employers use to avoid paying out their termination obligations. Here are a few of them:

Your Employment Contract

Some employers include clauses in employment contracts that suggest you would be ineligible for any notice and severance in a for-cause termination. They try to diminish your rights specifically to make it easier to terminate you. In fact, such clauses may void the contract itself.

Regardless of what your contract says, our laws guarantee minimum notice and severance to all employees of Ontario. This, unless your employer can meet a high burden of proof to establish willful misconduct on top of a for-cause termination.

For peace of mind, let us advise you about that employment contract before you sign it.

Contract Workers Fired Without Notice and Severance

Temporary and contract jobs are the sign of our times. They have grown exponentially in the last decade and this trend will not stop any time soon. Many individuals find themselves working in jobs, just like full time employees, but without security and benefits. They represent the most vulnerable group of workers, regularly fired without notice and severance pay.

We put this situation under the glaring light of a legal microscope with our ground breaking case, Keenan vs. Canac Kitchens. As it turns out, in some situations contractors do have the same rights as employees.  And the judge coined the term Dependent Contractor  to describe this previously unrecognized, but emerging class of worker in Ontario.

In fact, effective January 2018, Bill 148 brought amendments to Ontario’s Employment Standards Act. We now protect Dependent Contractor employment relationships under the law.

Contact us if you are a contract worker fired without notice and severance. We can quickly examine your situation to determine if you have the same rights as an employee.

Sham Layoffs

Job Layoffs are different from terminations. They must meet very specific conditions outlined in the Employment Standards Act. It allows employers the ability to manage their staffing levels and payroll costs when faced with financial hardship during economic downturns.  Employers must follow very specific rules when they layoff workers.

Unfortunately, unscrupulous employers count on their employees’ ingnorance about the law.  They cycle their workers through random sham layoffs, making work schedules and income so unpredictable that employees end up quitting in frustration. This is a common tactic to avoid paying out severance. And it is completely against the law.

Fired Without Notice and Severance For-Cause

While your employer can fire you for-cause, it must be for serious reasons such as theft, fraud, insubordination, intoxication etc. For minor allegations such as performance issues or typical lateness, they must first provide you with continuous warnings and opportunities to improve your performance. And even under these circumstances, when they let you go, they still owe you minimum notice and severance.

Whistleblowers often get caught in this trap when employers takes offense to exposed wrongdoings and attempt to turn the whistleblowing into an act of insubordination. You will require solid legal backup to litigate such situations.

Willful Misconduct: Serious Allegations

If your employer alleges willful misconduct on top of a for-cause termination, then these are very serious allegations indeed, far more than a just-cause termination. Under these circumstances, you must call us right away. We understand the law extremely well in this regard and will advocate fiercely on your behalf when your case warrants it.

Your employer must meet very stringent standards for alleging a willful misconduct. First of all, did they know about the alleged misconduct for a significant period of time? Secondly, did they inform you that your conduct  was not acceptable? Thirdly, was the alleged willful misconduct serious and egregious? And finally, did you commit these acts knowingly, recklessly and consciously?

In the leading case of Oosterboch v. FAG Aerospace, the employee was disciplined four times within a twelve-month period. However, the court determined that the warnings were for minor infractions. E.g., failure to take notice of product defects, failure to arrive on time, etc. The judge ruled that those actions did not sufficiently meet the standards for willful misconduct. They were not serious enough to immediately rupture the working relationship such as willful disobedience and willful neglect of duty that can cause harm to the company. Not having met that very high burden of proof, this employer did not have a case to avoid paying out their severance and notice obligations.

Bad Faith Dismissals

In a very similar case in 1997, we represented the plaintiff in Tramov v. OFG (Ontario Family Guidance). He was a  senior Vice President fired after 3 years with a for-cause dismissal. On top of this they accused him of willful misconduct because he allegedly accessed his colleagues payroll information. Consequently, he was fired without notice and severance.

We conducted an initial review and presented the facts to the employer’s counsel. This was sufficient to have them withdraw the allegations on the eve of the trial. However, they still refused to pay enough reasonable severance. In hearing the evidence, the courts concluded that the employer trumped up the allegations in an attempt to play hardball over his severance negotiations. They deemed this a bad faith dismissal. In this respect, our courts maintain that employers should know better. They do not take bad faith dismissals lightly and justified stinging Ontario Family Guidance with 30% more damages.

The Law is On Your Side

Employers have very little leeway to fire you without adequate compensation. There are many legal instruments that discourage them from doing so for trivial reasons or for false and unproven accusations. Our laws inflict severe penalties on employers who pursue such allegations and then miss the mark. Ontario employees can take comfort that the law is firmly on your side in this matter.

Contact us for representation if you find yourself in the unfortunate situation of being fired without severance and notice.

Lecker & Associates has practiced employment law for over 35 years.  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.