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EMPLOYMENT
YOUR RIGHTS
Both employers and employees have unique rights and obligations in law that they should be aware of. For instance, while an employer may terminate an employee at any time, there are certain rights an employee has upon termination. Furthermore, the nature of an employee's rights and obligations may differ depending on the nature of the employment in question.
If you are a non-unionized employee in Ontario who is not employed in an industry regulated by the Federal Government of Canada, and you have been terminated from your position, there are statutory protections in place that your employer must comply with. These protections are set out in the Ontario Employment Standards Act.
Under the Employment Standards Act, you are entitled to receive written notice of your dismissal if you have been employed for 3 months or more. The required notice period differs depending on how long you have been employed at your position. Once an employer has given an employee appropriate written notice, the employer cannot alter the employee's rate of wages or any other term or condition of employment. During the period of notice, an employer is required to pay the employee's wages for that period, as well as, any contributions that must be made with respect to a fund or plan. Upon the expiry of the notice period, the employer is required to pay to the employee any wages or vacation pay that the employee is entitled to.
If you are not given appropriate notice of your dismissal, you are entitled to receive termination pay in an amount equal to the wages that you would have been entitled to receive for the required period of notice. This is often referred to as "pay in lieu of notice." Your employer is also required to pay any contributions with respect to a fund or plan in order to maintain the benefits an employee is entitled to during the required notice period.
You may also be entitled to severance pay upon termination. Severance pay is a lump-sum payment that must be paid to an employee whose employment has permanently ended for causes that are usually beyond the worker's control. Only employees who have worked for the same employer for five years or more or who have been dismissed as a result of company downsizing or reorganization are entitled to severance pay.
An employer may be entitled to fire an employee without written notice or payment in lieu of notice if the employer has just cause for the dismissal. Whether or not there is just cause for summary dismissal may depend on whether an employee has breached his or her obligations to the employer in such a way that the actual contract of employment has been repudiated, or you have violated your duty to your employer.
However, if the dismissal is not justified an employee can bring an action in damages for wrongful dismissal at common law in addition to any remedies that are available under the Employment Standards Act. Wrongful dismissal is a common law action that is not covered by the Employment Standards Act. An action for wrongful dismissal may lie against an employer even though he or she tells you that you are being dismissed for just reasons or if your employer changes terms and conditions of employment significantly without your consent, forcing you to resign as a result. This is called constructive dismissal.
A court may award compensation on a notice period it considers just and appropriate in the circumstances. This may be greater than what an employee is entitled to under the Act. In determining a length of notice that is fair and reasonable, a court may look at the terms of the employment contract, the reason for the dismissal, the availability of other employment, the length of the employee's service, the age of the employee, the employee's work record and the nature of the work itself.
PROTECTING YOUR RIGHTS
You should first assess the situation for yourself. The fact that an employer is downsizing or reorganizing does not mean they can ignore their obligations under the law. If you feel you are being wrongfully dismissed, ensure that the amount of notice you are getting is reasonable and fair by contacting a lawyer. Do not sign anything and do not accept a demotion or transfer if you feel it is unfair. Begin minimizing your loss by looking for a new job right away. You have a duty to minimize your loss to the extent it is possible.
If your employer has failed to abide by the Act, you may be entitled to file a claim setting out how your employer broke the rules under the Employment Standards Act. Be sure to keep copies of all correspondence that transpire between you and your employer.
Before filing a claim with the Ministry you should contact a lawyer as soon as possible and become informed about your rights under the Act and at common law. Every situation is different and there are experienced and knowledgeable lawyers prepared to give you advice about what is reasonable and fair in your particular case. Remember that, in addition to any statutory rights you may have, you may have a greater claim in an action for wrongful dismissal. Damages for wrongful dismissal are grounded exclusively on the employer's failure to give proper notice when terminating the employment contract.
OUR SERVICES
Shields & Hunt represents employees in all types of employment disputes. If you have been terminated or demoted by your employer we can provide assistance with all aspects of your case including assessing your claim, negotiating with your employer, preparing an Employment Standards application and litigating an action before the courts. If you have been demoted or terminated and would like an assessment of your case, please contact us for more information or to arrange a consultation.