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Matt Lalande is a Hamilton Employment Lawyer who has been representing Fired Employees in Hamilton and throughout all of Ontario since 2003.

Our Hamilton Employment Lawyers are trial lawyers with extensive experience in representing employees that have been unfairly terminated or wrongfully dismissed. If you have been recently terminated or fired, it is important to remember that you have rights.  The Hamilton Employment Law Firm of Lalande Employment Lawyers represents clients who have been wrongfully terminated from their jobs and not paid enough severance. If you have been unfairly let go, you have rights and deserve aggressive legal representation to fight on your behalf.

Have you been terminated? Is your severance package fair and acceptable? Don’t sign anything before speaking to our Hamilton Wrongful Dismissal Lawyers.

You have the absolute right to legal advice before signing any termination documents or release. Do not lose your employment rights to severance or termination pay before speaking to a Hamilton employment termination lawyer.  Lalande Employment Lawyers has offered legal guidance and representation to Hamilton area executives, professionals and employees on select employment law matters. The firm does not represent employers and we specialize in termination matters.

If you’ve been fired, have your severance papers reviewed now.

If you’ve been fired, it’s important that you do not sign anything under duress or while emotional. It’s important that you “cool off” and have your severance papers reviewed by a qualified Hamilton employment lawyer who can ensure that – you are paid proper termination pay, you are paid proper severance pay, you are paid proper severance in lieu of notice, among other things and that your contract is not invalidated by a termination clause which contravenes the Employment Standards Act of Ontario.  By working with a Hamilton employment lawyer, we can protect your employment rights and assist with the challenges of today’s workplace by providing practical advice on all aspects of the employment relationship.

What is “reasonable notice”?

In every non-unionized employment relationship, an employer has an implied common law obligation to give the employee reasonable notice of its intention to terminate the employment relationship, unless there is just cause for termination. If your employer fails to give you reasonable notice of termination, you can bring a wrongful dismissal action for breach of that implied term. The purpose of providing reasonable notice is to allow you to have a period of time in which to secure alternative equitable employment. Reasonable notice is determined on a case by case basis.

What Severance Pay am I Entitled to?

In Ontario, employers have the right to terminate any of their employees without reason providing they provide appropriate notice. What does this mean for you? This means that if you have been unfairly terminated, your employer will need to either provide you with advanced reasonable notice of your termination or a cash payment to you in place of notice.

This is not to be confused with an employee’s minimum statutory entitlement to termination pay or severance pay pursuant to the Ontario Employment Standards Act. This act provides that employees are not to be fired unless they are provided with advance notice or termination pay in place of notice, which depends on how long they have been employed. The amount of minimum notice required can be found in this chart.

Remember, the rules under the Ontario Employment Standards Act about termination and severance pay are an employer’s minimum requirements. You may have greater rights that exceed minimum payments. Some terminated employees choose to file a lawsuit against their employer for such things as wrongful dismissal or constructive dismissal.

How much notice an employee is entitled to depends on a variety of factors that you should speak to a employment lawyer about immediately.

There are three main areas of termination entitlement that your employer may be required to provide you at the time of your termination are 1) statutory termination notice in accordance with the Employment Standards Act 2) statutory severance pay (only for certain Ontario or federally regulated employees), which must be given as pay and cannot be given as notice and common law reasonable notice or pay in lieu of such notice. The calculation of common law notice is a fact specific exercise. There is no formula derived from precedent leading to an exact result since the facts from each case will invariably change. Some but not all of the variables affecting the length of notice are as follows:

Length of Service – How long have you been employed with your present employer? The employee’s length of service is an important factor in the determination of reasonable notice.
Age –  How old are you? Courts are very cognizant that an older employee will often have a difficult time in obtaining alternative employment, and therefore considerable weight will be given to the age of the plaintiff.
Availability of Similar Work – Employees that have specialized jobs or who are highly skilled have been held to deserve notice at the higher end. A similar job opportunity like yours may be virtually non-existent or very difficult to find.
Character of Employment –  Courts have given considerable weight to the importance of the plaintiff’s position within the employer’s organization in calculating reasonable notice.
Health of the Employee – Courts have held the health of the employee to be a relevant factor in determining the period of reasonable notice. Medical difficulties can affect the availability of alternate employment.

An employee that is wrongfully dismissed has had his or her employer fail to provide adequate notice of termination. How much notice an employee is entitled to depends on a variety of factors that you should speak to a Hamilton employment lawyer about immediately.

We will Make Sure your Rights are Protected

Severance Package Reviews – If you have been recently terminated, you should have your termination letter reviewed to ensure that you are not signing away your rights to any severance that you may be entitled to. Other situations that call for review include an employer removing your seniority, sale of the business, the business owner retiring, forced vacation, and unilateral changes to your employment contract that you do not agree with.

Contract Reviews – Have you been recently hired? You should have your contract reviewed before starting your new dream job to save expense later if things go sour. You should have things like non-compete or non-solicitation clauses, termination clauses or severance amounts, and discretionary bonus clauses all reviewed by a lawyer experienced with employment issues.

Fired for Cause – It is normally implied within the employment relationship that the employer may terminate employment for very good reason. If you have been fired for cause, talk to a Hamilton employment lawyer to make sure the termination is legal. You may not be getting what you are entitled to. The onus to fire for cause is a very high one for employers.

Constructive Dismissal – When an employer’s conduct displays the intention to no longer be bound by the contract of employment, the employee has a choice: He or she can either accept conduct or changes made by the employer, or treat the conduct or changes as a repudiation of the contract, hence suing for constructive dismissal.

Severance Pay – are you entitled to severance pay? Although many people interchange the two, severance pay is distinct from termination pay. Severance pay is an amount of money paid to an employee by an employer under certain conditions specified by the employment standards act.

Termination Pay – are you entitled to termination pay? Termination pay is the minimums set out by the Employment Standards Act.

Payment in Lieu of Notice – are you entitled to payment in lieu of notice? Payment in lieu of notice is different from termination pay. Payment in Lieu of Notice, otherwise called common law notice. The Employment Standards Act provides the minimum amount of notice. In some cases, there is also the common law notice period requirement, resulting in enhanced termination pay depending on certain conditions.

Connect with a Hamilton Employment Lawyer

Lalande Employment Lawyers have the trial experience and extensive knowledge in the areas of employment law you need on your side.  If you believe you have been wrongfully dismissed, it is a good idea to speak with a Hamilton Employment Lawyer. Our employment lawyers will evaluate the strength of your claim and advise you of your options, help you negotiate a better severance package, or if necessary, file a lawsuit against your employer for damages. We will guide you through the legal process and communicate regularly with you about the status of your case. The first step is to contact our Hamilton employment lawyers to schedule a free consultation today.


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Hamilton Employment Law FAQs

Whether you are an employee or a small or large company, we understand that, at times, employment situations come up quickly and unexpectedly, which is often followed by what seems like a limitless list of questions and concerns. Our employment lawyers are here to provide you with the answers you need, and to that end, we?ve answered a few common questions in the space below:

No, you have the full legal right in Ontario to seek the assistance of an employment lawyer before signing any type of contract, whether you?re starting or ending a job. Furthermore, if you decide to sue your employer for wrongful dismissal, you have two years from the date of your termination to do so.

There is a fee involved with the intial consultation. If we decide to work together, we will work out a payment arrangement that suits your needs.

You should bring in a copy of your identification; a copy of your termination letter or severance package; your original employment agreement or contract, if you still have it; any information regarding your position and duties; your up-to-date CV (if you have one); and information regarding your salary, benefits, allowances, and bonuses. If you have been fired for cause, please bring in all of your warning letters or documentation you have pertaining to the cause.

The employer’s obligation to provide the employee with reasonable notice of termination does not apply where:
  • The employee resigns his employment;
  • The employment relationship is frustrate;
  • There is just cause for termination of employment;
  • The employment contract contains a valid term providing for the amount of notice to be given in the event of termination;
  • The employment contract is for a fixed term.
There are two steps to determining the employer’s liability for reasonable notice:
  • First, the employer must determine the period of reasonable notice. There is no definitive catalogue or list that will guide in assessing reasonable notice in a particular case. The most important considerations are the Bardal factors, however, other factors may also be considered.
  • Second, the employer must calculate the employee’s damages based upon the reasonable notice period. Reasonable notice damages are usually calculated on the basis of the employee’s compensation per month, multiplied by the number of months of reasonable notice. There may be deductions from the damages for mitigation income and collateral benefits.

No, independent contractors are not entitled to common law reasonable notice of termination.

The purpose of providing reasonable notice is to allow the employee a period of time in which to secure alternative employment.

Yes, unlike statutory minimum termination pay, you can certainly contract out of reasonable notice. As a substitute for common law reasonable notice, you and your employer might have agreed at the outset to any amount of notice or pay in lieu of notice that is equal to or?above the statutory minimum.

The starting point for determining the reasonable notice period is set out in an old seminal case case called Bardal v. Globe & Mail Ltd., from 1960. Bardal tells us that reasonable notice is decided with reference to the certain key factors (the “Bardal factors”):

  • The character of the employment;
  • The employee’s length of service;
  • The employee’s age;
  • The availability of similar employment, having regard to the experience, training and qualifications of the employee.

Bardal lists the most important factors to be considered in assessing the common law reasonable notice period. These factors are weighed and balanced by the courts in their analysis. No single Bardal factor is to be given disproportionate weight.

It’s important to understand that Bardal does not provide an exhaustive list of the factors to be considered. Courts have added other factors into the analysis. However, additional factors are not given the same weight as the Bardal factors, except (arguably) for the factor of inducement.

The reasonable notice period has been generally capped at a rough upper limit of 24 months of notice, with the court awarding above 24 months if exceptional circumstances are demonstrated. For example, in the case of Dawe v. Equitable Life Insurance Company, 2018 CarswellOnt 8419 (Ont. S.C.J.) a 62-year-old senior vice president with 37 years of service was awarded 30 months of notice. The court would have awarded 36 months on the basis that no comparable employment was available however only 30 months of notice was claimed.

This approach has been rejected by the appeal courts as it overemphasizes the length of service factor and undermines the flexibility of the Bardal analysis. The rule of thumb approach to reasonable notice also has little correlation to reality. Short term employees may well receive reasonable notice in excess of a month per year of service (sometimes up to four or five months per year of service) and longer-term employees (over 20 years) tend to receive less than a month per year of service.

The reasonable notice period is usually expressed as a number of months. The definition of a month as it relates to the beginning and end dates of the notice period can be a key issue in calculating an employee’s reasonable notice damages.
For example, where an employee is entitled to damages for any bonus arising during the reasonable notice period, and the employee’s bonus vests of a specific date, the employee’s entitlement may turn on the precise calculation of that notice period down to a single day.
There are two ways to view the length of one month:
  • A standard period of days. In this approach a month would either be treated as 30 or 31 days.
  • A calendar month. In this approach December 5 to January 5, and January 5 to February 5 would both be treated as one month despite containing a different number of days.
An Ontario court has held that a month of reasonable notice is a calendar month. This method is “clear, simple and accords with common sense and everyday experience”.
There are two steps to determining the employer’s liability for reasonable notice:
  • First, the employer must determine the period of reasonable notice. There is no definitive catalogue or list that will guide in assessing reasonable notice in a particular case. The most important considerations are the Bardal factors, however, other factors may also be considered.
  • Second, the employer must calculate the employee’s damages based upon the reasonable notice period. Reasonable notice damages are usually calculated on the basis of the employee’s compensation per month, multiplied by the number of months of reasonable notice. There may be deductions from the damages for mitigation income and collateral benefits.

In considering the character of employment, the courts are more concerned with the responsibilities, skills and character of the work performed rather than the minutia of the employee’s job duties or the employee’s job title.

In the past many courts assumed that senior level employees with a high degree of management functions or professional skills would have a harder time finding alternative employment and, as a result awarded greater reasonable notice for more senior level positions than for lower level or non-skilled positions. However, in the last 20 years Appeal Courts have considered the character of employment factor as one of “declining” importance or significance in the reasonable notice assessment. The character of employment factor is relevant to the reasonable notice analysis, but it is not to be given disproportionate weight (See Keays v. Honda, 2008).

Long term employees are typically entitled to longer notice periods than short term employees of the same age, with the same skills and responsibilities.

Normally, the length of an employee’s service is easy to determine: it is the period between hiring and termination. However, this determination becomes more difficult if there has been a break in the employee’s tenure of service or there has been a sale of the business.
Changing employment status may also complicate the assessment of length of employment. A court may consider prior service as a dependent contractor in addition to service as a true employee in the calculation of the reasonable notice period.
Older employees are generally entitled to longer reasonable notice than younger employees, based on the rationale that it will take an older employee longer to find new employment. The court will take judicial notice that:
“Barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills”.
McKinney v. University of Guelph, 1990 CarswellOnt 1019 (S.C.C.)
The fact that an employee is nearing a normal retirement age, and presumably has less working years left, does not reduce the reasonable notice period. On the other hand, the notice period is not increased to the point that the employee will receive reasonable notice for life or until he retires.
If there is a term in the employment contract requiring the employee to retire at a certain date, the reasonable notice period will not extend past that retirement date because the employee will not have had the contractual right to continue to be employed by the employer beyond that date.
Note that dismissing an older employee who is near normal retirement age may lead to a human rights claim.
Like other factors, age should not be given disproportionate weight in the Bardal analysis. For example, it is improper for the court to set reasonable notice as the time-period needed to bridge an older employee to the date he would be entitled to a full pension.
The length of service may be difficult to determine when the employment relationship has not been continuous.
In general, if the employment has been interrupted for a lengthy period of time (for example, where an employee leaves to work for another employer) the length of service will run from the date of the rehiring and not the prior hiring date. The longer the period of interruption in service, the less likely the court will consider the period of prior service in its assessment of reasonable notice.
The court, however, has the discretion to disregard a gap in service when considering the employee’s length of service and may examine the gap in the context of the entire employment period.

Severance pay is a payment that is made by the employer upon termination of an employee, in addition to any individual notice of termination and group termination notice. Where notice of termination is meant to give an employee an opportunity to prepare for an upcoming termination and take measures to seek alternative employment, severance pay is meant to compensate the employee for the investment of her long service with the employer’s business.

Severance pay cannot be given as working notice and must be given as additional pay upon termination. The employer is required to pay the employee her total severance pay amount even where it provides greater than the minimum required amount of working termination notice. (Mattiassi v. Hathro Management Partnership.)

In Ontario, a termination clause that gives the employer the option to provide?severancepay as working notice, in part or for the entire?severance?pay entitlement, will likely be unenforceable for contracting out of the Employment Standards Act, 2000, S.O. 2000, c. 41. (Wood v. Fred Deeley Imports Ltd.)

Yes, Any severance?pay paid to the employee is deductible from her common law reasonable notice entitlement. See Stevens v. Globe & Mail, 1996 CarswellOnt 1590 (Ont. C.A.) and Brake v. PJ-M2R Restaurant Inc., 2017 CarswellOnt 7619 (Ont. C.A.).


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