CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario.

Karen McClellan leads the JUSTICE@work project at the
Community Legal Clinic – Simcoe, Haliburton, Kawartha Lakes. As a Staff Lawyer, Karen practices employment and human rights law, with a focus on low-income and vulnerable workers. Her clients include migrant farm workers and live-in caregivers. She has presented on the legal challenges facing workers to community groups, regional clinic training conferences, and provincial and national symposiums. She also served on of the Ontario Bar
Association Taskforce on Wrongful Dismissal.

Your rights after being dismissed from employment
March 23, 2010
By Karen McClellan
JUSTICE@work Lawyer
JUSTICE@ work

Presented by

1. You are a non-unionized worker in
Ontario, Canada who has been fired, laid off or otherwise left a job
OR
2. Your are an advocate, service provider or ally that a worker or workers may turn to if fired or laid off from a job
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This is not a substitute for legal advice.
If you need legal assistance, call Legal Aid
Ontario at 1-800-668-8258 and ask to be referred to your community legal clinic.
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1. Events that can result in job loss
2. Your rights when you lose your job
3. How to enforce your rights
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1. Termination letter
2. Verbal dismissal
3. Lay off – no recall
4. Abandonment
5. Benefits cut-off
6. Change in ownership
7. Employer bankruptcy
8. Being forced to quit
( constructive dismissal )
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1.
Get legal advice about your situation
Legal Aid Ontario: 1-800-668-8258
2.
Keep copies of everything ( keep at home )
- Termination letter
- Email and other correspondence
- Evaluations, awards, performance reports
- Witness names and contact information
Doctor’s notes
3.
Write out a diary of events ( keep at home )
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• Most common
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Under the ESA:
• After 3 months on job, employer must give the worker proper written notice of termination — otherwise the worker has a right to termination pay
No letter + No cause for dismissal = Termination pay
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You must choose:
(1) Consider it a dismissal OR (2) Wait for a call back
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Law Employment
Standards Act
Common law
(judge-made)
Enforcement Ministry of
Labour
Factors 13 weeks in a
20 week period
Court
What is typical in the company?
35 weeks in a 52 week period in special circumstances
What is typical in the industry?
Was a lay off something that was at thought about at the time of hiring?
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Signs the lay off is permanent (a dismissal)
– No history of layoffs at the company
– Other people have been called back, but not you
– Lay offs were never part of agreement with company
– Somebody else is now doing your old job
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• Indefinite leave
– often seen when medical condition and no response to employer messages
• Alleged voluntary resignation
• Failure to report
• Jail – no right to have job back
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• Sick leaves are an entitlement under the ESA and under company policy
• Disability benefits are governed by contract – group benefits package
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Employer obligation
Employee obligations to accommodate medical conditions, subject to certain conditions to provide information:
1.
in a timely manner
2.
in compliance with company policy
3.
sufficient medical information from doctor, as requested AND
4.
Including prognosis and expected date of return to work
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Protect yourself
• Get legal advice right away
• Ask you doctor how much time you need off
– an indefinite leave could be abandonment/frustration
– if you have benefits, consider insurance claim for Long
Term Disability (LTD) or Short Term Disability (STD)
• Protect yourself from dismissal on sick leave
– respond to employer inquires in a timely manner
– provide medical information, as requested
– keep in touch with employer
– Keep a record of all correspondence with employer
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Protect yourself
• Get legal advice before signing any contract
• Restructurings common in bad economy
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• Often termination by court order
• Same rights-but different mechanism for enforcement
• Key issue is who gets paid first (i.e. workers or other creditors)
– Unpaid wages (vacation pay) get priority
– Termination pay priority depends on whether claim is made under the ESA or common law
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Protect yourself
• Get legal advice
• Watch for correspondence from trustee, receiver or company
• If you’re owed money, notify the
Trustee/Receiver in writing
• Find out which bankruptcy law applies: CCAA or
BIA?
• Determine if you are owed
– unpaid wages (including vacation pay)
– pension benefits
– termination pay and severance
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• Told “resign or be fired”
• Material change*
– Duties
– Salary
– Location
*Unless you accept the change
• Harassment, bullying
– As of June 2010—report violence to
Ministry of Labour as safety risk
• Discrimination
– Human rights complaint
• If you are safe, get legal advice before you quit
See webinar: Forced to quit?
Constructive, Dismissal,
Discrimination, Harassment
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1. Notice or notice pay
2. Severance (if eligible)
3. Unpaid wages
4. Benefits in contract
5. Onus on the employer to prove cause allegations
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Who
Employees without contract
Employees with contract
Federally
Regulated
Unionized
Source of rights
Employment Standards Act
OR Common Law
Contract*
*can’t be less than ESA – other rules apply too
Canada Labour Code
OR Common Law
Collective agreement
Independent contractors
Contract
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Employees without contract
Employees with contract
Unionized workers
ESA/CLC or
Common Law
Contract
(can’t be less than ESA)
Termination pay
(sometimes severance too under ESA)
Depends — sometimes termination and severance and/or balance of contract
Grievance process
Collective agreement
Independent contractors
Contract
Contract rights, which are enforceable in court
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You can be fired at any time so long as you are given notice (advance warning) or pay instead of notice
• Pay instead of notice is called termination pay
• No termination pay if you are fired for cause
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Depends on situation
• Minimum termination pay is set out in law
– You can go to court to get more
– If fired for cause or you quit or abandon your job, no termination pay
• Workers also get severance pay in some cases
• If fixed-term contract, termination pay may be set out in contract and/or you may also be entitled to all or part of the balance of contract
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Termination pay
• Minimum termination pay set by law
– After 3 months employment, 1 week for every year worked up to 8 weeks (8+ years)
– Special rules if more than 50 workers are terminated at an employer's establishment within a four-week period
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Severance pay
• Severance pay is in addition to termination pay
Eligibility:
• Worked for five or more years and
• Employer has a payroll in Ontario of at least $2.5 million; or
• Employer let go 50 or more workers in a six-month period because all or part of the business closed .
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Termination pay
• A court may award more termination pay than the ESA minimum
– Considerations
1. Length of employment
2. Age of worker
3. Type of employment
4. Availability of similar employment
– Subject to mitigation
• court will deduct any new wages earned in the notice period
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• Rights spelled out in contract
• Rights can’t be less than those in the
Employment Standards Act
• Can’t contract out of the Occupational
Health and Safety Act
• Contracts imposed on workers unfairly can sometimes be put aside
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• No discrimination on Human Rights
Code grounds
• Right to violence-free workplace
• No reprisal for enforcing rights under
Employment Standards Act or
Occupational Health and Safety Act
– Reinstatement possible
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• Human Rights only prohibits discrimination on the following grounds:
▪ race
▪ ancestry
▪ place of origin
▪ colour
▪ ethnic origin
▪ citizenship
▪ sex (including gender identity)
▪ creed (faith, religion or system of beliefs)
▪ the receipt of public assistance
▪ sexual orientation
▪ age
▪ marital status
▪ family status
▪ disability (or perceived disability)
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• Unsafe work Occupational Health and
Safety
• Bill 168 (June 15, 2010) – extends
Occupational Health and Safety Act to include violence in the workplace
• If you refuse work, make a complaint to the Ministry of Labour -
1-800-268-8013
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• Onus is on the employer to prove cause
• Cause is often alleged by employers, but this is difficult to prove
• If cause is proven, the worker gets no termination pay
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Serious misconduct
– Theft
– Dishonesty
– Insubordination
– Breach of Employer’s Rules/Company policies
– Persistent Absenteeism or Lateness
– Sexual Harassment
– Intoxication
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Minor misconduct
– Absenteeism/Lateness
– Personality Conflict
– Poor performance
• Persistent inability of employee to perform job duties or meet job requirements
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• Incapacity to perform work (frustration)
– Permanent disability or injury that cannot be accommodated by the employer without undue hardship
• Alcohol or drug ad diction that cannot be accommodated
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• Proportional approach to dishonesty and other types of misconduct
• Evaluating the case
• Written warnings for misconduct
• Content of written warnings
• Meetings with supervisors
• Condonation of misconduct
• Prejudice to employer
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• Mitigating factor of long service & loyalty
• Intent (dishonesty, insubordination, policy breach)
• Examples of courts’ application of proportionate approach:
• Sexual harassment
• Theft/dishonesty
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1. Collect information
2. Get legal advice
3. Decide how to proceed
• Ministry of Labour
• Federal Department of Labour
• Small Claims Court
• Superior Court of Justice
• Human Rights Tribunal of Ontario
• Canadian Human Rights Commission

Protect yourself
1.
Don’t accept an offer or sign a release before getting legal advice
2. Keep your documents
• Record of Employment
• Termination letter
• Settlement offer and release
• Emails, letters, medical, performance reviews
3. Start a diary of key conversations and events
4. Start and record mitigation efforts
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1. For free legal advice, call Legal Aid
Ontario at 1-800-668-8258
2. To find a lawyer, call the Law Referral
Service at 1-800-268-8326
3. If you have been subjected discrimination, call the Human Rights
Legal Support Centre at 1-866-625-5179
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1. Ministry of Labour/Department of Labour
– Federal Department of Labour for federally regulated industries:
Banking, inter-provincial transport, television, radio, airlines, phone companies, port authorities, First Nations, federal agencies
2. Court
– $25,000 or less – Small Claims
– Over $25,000 – Superior Court of Justice
3. Human Rights Tribunal
– Broad remedies, including compensation for loss of earnings
–
Canadian Human Rights Commission for federally regulated industries
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• Employment Standards Act
• ESA minimum termination pay only
• ESA severance (if you the meet criteria)
• Simple complaint form
• Ministry of Labour investigates
• No risk of costs if you lose
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Calculating termination pay
Length of Employment
Less than 3 months
3 months but less than 1 year
1 year but less than 3 years
3 years but less than 4 years
4 years but less than 5 years
5 years but less than 6 years
6 years but less than 7 years
7 years but less than 8 years
8 years or more
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Notice
Required
None
1 week
2 weeks
3 weeks
4 weeks
5 weeks
6 weeks
7 weeks
8 weeks

Calculating severance pay
• multiply the regular wages for a regular work week by the sum of:
– the number of completed years of employment; and
– the number of completed months of employment divided by 12 for a year that is not completed.
• 26 weeks is the maximum amount of severance pay set out in the ESA
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Reprisals
• Enforcing Employment Standards Act rights
• Occupational Health and Safety
– Reinstatement a potential remedy
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• Common law (judge made law)
• A number claims can be considered by the court at the same time including:
• Termination pay and unpaid wages
• Discrimination on Human Rights Code ground
• Mental distress
• Defamation
• Aggravated damages (bad faith conduct)
• Punitive
• Special damages (moving costs, job search expenses etc…)
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• Complex process
• No investigation
• Scarce legal aid
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By Ministry of Attorney General

Calculating termination pay
• Termination pay based on four factors:
1.
Length of service
2.
Type of work/job duties
3.
Availability of commensurate employment
4.
Other: health/pregnancy; education; prior work experience
• No set rule
• range is 2.5 weeks to 1 month per year of service
• Subject to mitigation
• new income in the notice period is deducted
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• If you were recruited, your length of employment for the purposes of calculating termination should include the previous job
• Detrimental reliance
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• Duty of employee to attempt to mitigate losses flowing from dismissal
• You need to look for a new job
• It is up to the employer to prove:
1.
Employee failed to mitigate;
2.
Employee could have found commensurate employment if she/he had tried
• “Commensurate” employment availability
• Practical aspects of the current economic crisis
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• If you lose, you may have to pay costs
– Costs are the court’s estimate of the legal expenses of your former employer because of your case
• If you win, but are awarded less than what your employer offered you, you may also have to pay costs
• Once you start a court action, can’t abandon it without the other side’s consent
– without consent you could be ordered to pay costs
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• Dismissed workers can pursue unpaid wages and termination pay in two ways:
1. Employment Standards Act (ESA) complaint to the Ministry of Labour OR
2. Action in court for wrongful dismissal.
• You cannot do both
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• There are deadlines for filing a claim
– ESA complaint must be made within 6 months
– Court action must be started within 2 years.
• If you make an ESA complaint, but now want to pursue the matter in court, you must withdraw your ESA complaint within
2 weeks
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Ministry of Labour Small Claims Court
•
Short-term employment
• Entry level specialization
• Little training/education required
• Qualify for severance pay
• termination pay and/or unpaid wages the only claim
• unclear if claim will be successful
•
Long-term employment
• More specialization
• Formal training/education req.
• No severance under the ESA
• other legal claims in addition to termination pay/unpaid wages
• access to legal representation
• claim is older than 6 months
• claim is for over $10,000
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Get legal advice
• It is up to the employer to prove cause
• Look for performance reviews, awards, emails etc. that are inconsistent with employer’s allegations
• Look for failures to investigate
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For more information visit the Employment and Work section of CLEONet at www.cleonet.ca
For more legal information webinars visit: http://www.cleonet.ca/legal_education_webinars