Our Hamilton Employment Lawyers understand that the loss of one’s job is almost always a traumatic event. It can have drastic practical consequences and can be personally crushing. Since 2003, we have represented countless employees who have wrongfully terminated or fired from their jobs unexpectedly – and not paid enough severance.
If you have been fired remember – try not to make a bad situation worse by getting angry, losing your temper or saying the wrong thing. There’s no doubt that it’s natural to feel upset and confused after you have been fired but remember, try and restrict any type of negative tone or comments or complaints at the time of your termination. The most important thing at this point is to remember not to sign any document handed to you. You are allowed to retain an employment lawyer to review your severance package, learn your employee rights, learn if the termination was wrongful, and make sure that you are entitled to everything that you deserve.
Unfortunately, many people have a misconception about what wrongful dismissal means. Wrongful dismissal does not necessarily mean you have been wrongly terminated, but rather, it means that the notice given or the payment in lieu of the notice given is not reasonable or acceptable. An action for wrongful dismissal is an action for damages for loss of employment and not for reinstatement into the position. Wrongful dismissal claims are decided on a case-by-case basis, with regard to (among many other things): (i) the character of your employment; (ii) your age; (iii) length of the your service; and (iv) availability of similar employment, having regard to your experience, training and qualifications.
To determine whether you have been terminated in an improper (or illegal) fashion, you should understand the basics of what it means to be terminated from a job in Ontario. A Hamilton employment lawyer can help explain your legal rights.
If you’ve been fired you need to know if you’re being paid enough severance. Remember, employers in Ontario have the full right to terminate a contract of employment of indefinite hiring if the employer provides or pays the employee appropriate notice or severance pay in lieu of notice of termination. In Ontario, there is statutory minimum notice which must be provided – which an employer cannot contract itself out of. There is also common law notice – which is termination pay or payment in lieu of notice is significantly more that the prescribed statutory minimum notice.
Severance pay seems to be a catch-all term for termination pay, but it is, in fact, something different. Severance in Ontario only applies in certain circumstances, particularly when an employer has a payroll of 2.5 million or more or, irrespective of annual payroll, when fifty or more employees are terminated in a period of six months.
Rather than thinking of severance, the terminated employee should think of notice – i.e. How much notice should my employer give me of my termination?
An employer has two options when providing an employee with reasonable notice of his or her termination. The employer can either require the employee to continue working for the period of time until his or her termination or, provide the employee with payment in lieu of that notice. You are entitled to either payment in lieu of notice (what many call severance), reasonable notice or a combination of notice and payment adding up to the proper period of notice. Therefore, if the employer fails to give the employee reasonable notice of termination, the employee can bring a wrongful dismissal action for breach of that implied term. In a wrongful dismissal case, the employee has the onus of establishing that they are entitled to a particular form of compensation during the notice period and establishing the financial value of their damages. Mitigation income and other collateral benefits may be deducted from this loss figure.
In Ontario, the Ministry of Labour prescribes minimum standards with respect to what employers must comply with. These minimum standards address employer obligations, including pregnancy and parental leave, wages, hours of work, overtime, and termination. Ontario’s Employment Standards Act mandates that employers are not to terminate an employee?s employment unless they pay that employee termination pay equal to his or her regular wages that he or she would have earned during the notice period. The employer must continue to provide the employee’s benefits, including pension, during the statutory notice period.
Ontario’s statutory termination minimums are as follows:
It is important to understand that termination pay is an amount paid by an employer pursuant to minimum standards legislation ? it is not severance pay, nor is it compensation for wrongful dismissal. If you?re confused about the difference, reach out to a Hamilton wrongful termination lawyer.
The calculation of reasonable notice can be quite difficult as there is no precise method to determine the period of reasonable notice required for termination of employment.? That being said, wrongful dismissal damages are generally calculated from the date of the employer’s breach of the employment contract (i.e. the date that employment was terminated without proper notice, pay in lieu or other termination entitlements.? In calculating what may be owed to an employee, the most quoted and applied guideline as to the calculation of reasonable notice is from Justice McRuer C.J.H.C.?s decision in Bardal v. Globe & Mail Ltd. where the Court said that there can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.
You may be entitled to damages for loss of bonus during the notice period. The right to a bonus may be created at the time of hiring, through a bonus policy, or as a result of commitments made to the employee through the term of their employment. Assessing bonus damages begins with a determination of whether you have a right to such damages. It is you as the employee that must determine that a bonus would have been earned during the notice period, and thus the employee is entitled to damages for loss of that bonus. This bonus may either be non-discretionary in nature or discretionary but integral to the employee’s compensation. It’s also important to speak to a Hamilton wrongful dismissal lawyer to determine whether the terms of the relevant contract or plan unambiguously alter or remove the employee’s common law rights.
Many employment lawyers do not valuate the loss of an automobile during the notice period – when in fact you can. One thing is for sure, however, you cannot refuse to return a company vehicle when your employment is terminated. You are not entitled to possession of a company car until the trial of their wrongful dismissal action, rather they should seek damages for loss of this benefit,
Damages for loss of a company car have been valued in different ways. The court may assess damages based upon:
The court will not typically award the employee the full cost of a replacement vehicle or the full value of the employer’s cost of the automobile, without deduction to reflect only personal usage.
If you’ve been terminated it’s imporant that you call a Hamilton employment lawyer sooner rather than later. The conditions and offer or your termination will no doubt be confusing to you if you have never been through the termination process before. The loss of one’s job is almost always a traumatic event and can be personally crushing.
If you’ve been terminated, you should locate the assistance of an Hamilton wrongful dismissal lawyer sooner rather than later. The guidance of an experienced employment lawyer is invaluable in ensuring that your case is properly established and that mistakes are avoided. As a general rule, after employees have been fired, companies are prepared to negotiate more seriously when an employee is represented by counsel than when the employee tries to arrange his or her own severance package.
Frequently, the fear of unemployment and the sudden cessation of cash flow motivates employees to sign improvident agreements. One of the most important tasks for a lawyer, in representing an employee, is to stiffen the client?s resolve and prevent the acceptance of any arrangement which does not provide as much protection as that which a court would. Our Hamilton employment lawyers are familiar with recent judicial trends, potential types of damages, severance alternatives, relevant strategies and the variety of tax structuring.
Our court system has repeatedly found that there is no precise method or rule of thumb for determining a period of reasonable notice for termination of particular employment. However, there are certainly factors applied as guidelines, some of which include the following:
Generally, your employer can choose whether to provide working notice to the end of the working relationship or immediately provide you with compensation equivalent to your notice period. This payment is called payment in lieu of notice. In short, the law requires all employers to provide notice to dismissed employees, whether an employment contract was signed or not.
An employer could write a cheque for a lump sum payout to satisfy its notice obligations or, in the alternative, allow you to continue working until the end of your notice period (also avoiding the LTD nightmare since you are still insured).
A payout for payment in lieu of notice is considered compensation for breach of the implied obligation to provide proper notice of termination, although in law, the quantum of compensation is equivalent to the required length of working notice. A payment in lieu of notice is an attempt to compensate for the employer’s breach of the contract of employment.
Losing your job can be a terribly sharp blow, especially if your employer terminates you without recognizing the impact the termination will have on your life. There’s no doubt that fired employees often don’t bounce back as well or recover to the same level of mental well-being for quite some time. Things are made worse when employers undervalue severance or notice payments.
If you have recently been terminated, do not sign anything without talking to Lalande Employment Lawyers. We would be happy to explain your rights in a free consultation ? with no obligation to you. Our firm will gladly go over the details of your termination with you and determine your options. We are here to protect you and your family every step of the way.
Because of the volume of calls, we unfortunately cannot see everyone – but we certainly look and review every inquiry in detail. We would be more than happy to discuss your situation with you and offer the proper and knowledgeable guidance and counsel that you need. You can contact our Hamilton employment lawyers today by filling in a contact form. We would be happy to speak to you about your situation.
In every non-unionized employment relationship, the 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 the employer fails to give the employee reasonable notice of termination, the employee can bring a wrongful dismissal action for breach of that implied term.
Your employer is obligated to provide you reasonable notice of your termination – or in the alternative – payment in lieu of such notice. If your employer has not provided you with reasonable notice OR payment in lieu of notice, or your employer has provided innapropriate notice then you may in fact have a claim for wrongful dismissal.
The court may increase the amount of reasonable notice where there is limited similar employment available in the job market, having regard to the experience, training and qualifications of the employee. On the other hand, where similar employment is widely available, less notice may be awarded.
This is conceptually different than the time taken to find a new job. Reasonable notice is determined by the circumstances existing at the time of termination and not by the time that it takes to find alternative employment (which goes to the duty to mitigate and not to the length of reasonable notice). See?Holland v. Hostopia.Com Inc., 2015 CarswellOnt 16985 (Ont. C.A.)
Yes, it is. The Supreme Court of Canada has expressly recognized that inducement is a factor to be considered in the reasonable notice analysis. Have a read of our blog post about inducement about how the inducement factor comes into play when en employee has left a relatively secure job.
The employer may choose to provide the employee with working notice of the termination of his employment. In this case, the termination letter would be given to the employee in advance of the actual termination date and expressly provide a final termination date that reflects the end of the applicable notice period.
Not typically. A release should not be used where the employee is given only working notice of his termination. If the employer offers additional payments over and above any minimum standards obligations (for example, the amount of working notice will not cover the entire reasonable notice period), it may require the employee to execute a release in exchange for the additional payments over minimum standards requirements.
In many cases, the employer notifies the employee that the employment relationship is terminated effective immediately and offers the employee pay in lieu of notice, either in the form of a lump-sum package or as a salary continuance package. Lump-sum packages are typically structured so that the employee receives a fixed sum, with no reduction for mitigation income earned during the notice period.
No, amounts paid as continuing salary will not qualify as a retiring allowance pursuant to Section? 248(1) of the Income Tax Act and therefore cannot be transferred into an RSP or RRSP for the purpose of the deferral specified in Section 60(j.1).