Employment laws exist to protect employees, especially at the time of termination. Yet almost every day in my employment law practice, I talk to people who are surprised to hear that according to the law, they may have been wrongfully dismissed — and they may be owed much more than they had thought.
Here are the answers to some of the most common questions I get about wrongful dismissals in Ontario.
What is a wrongful dismissal?
Wrongful dismissal doesn’t just happen when someone is fired for an unfair or wrong reason. Your employer can legitimately let you go for many reasons, as long as they’re not discriminatory ones.
When you are going to be let go, you must be provided with advance warning of your termination. Many companies choose to provide the employee with compensation in lieu of advance warning, which is commonly referred to as severance pay. A wrongful dismissal occurs when an employer fails to provide the correct amount of notice or severance without a lawful reason.
READ MORE: What you need to know about wrongful dismissals
What types of wrongful dismissals are there?
There are generally three types of wrongful dismissals. The first kind occurs when an employer claims to terminate an employee for cause and fails to provide the employee with any notice or severance, or only provides them with the minimum notice or severance pay mandated by their province and nothing more.
If an employer is able to prove the firing was for cause, they don’t have to pay severance. But proving it is hard to do, and often what an employer claims is a firing for cause is actually a wrongful dismissal.
The second kind of wrongful dismissal occurs when an employer terminates an employee without cause but does not provide enough notice or severance. These are situations where an employer dismisses an employee but is not claiming that they have cause for termination.
The third type of wrongful dismissal applies when an employer significantly alters the working conditions or terms of employment without the employee’s consent, and without providing proper notice or severance. This is called a constructive dismissal.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
How much severance should I get?
All employees in Ontario are owed a certain amount of minimum notice or severance when let go.
The employer can satisfy its legal duty to provide notice of a termination in a number of ways. Sometimes employers choose to give an employee notice that their employment will end at a date in the future, while the employee continues to work and be paid for their work. This is called working notice.
Sometimes employers choose to let the employee go right away and simply pay them for what they would have earned had they been given working notice. This is called pay in lieu of notice. Employers may also do a combination of both.
Without a legally enforceable termination clause in your employment contract, though, an employer is not allowed to limit you to only these minimum amounts.
As an employment lawyer, I regularly see clauses that are illegal and are not enforceable. If you are concerned about a termination clause in your contract, it is very important that you contact an Ontario employment lawyer, like the team at Samfiru Tumarkin LLP, so we can determine whether it is legal.
Without a legally enforceable termination clause, an employee is owed full severance in accordance with the common law. The amount of severance you should get in Ontario depends on several factors, including age, position, length of service, level of compensation and market conditions.
READ MORE: What you need to know before you sign a contract — even if your employer asks you to
How do you start a claim for wrongful dismissal?
You can start a wrongful dismissal claim by contacting an employment lawyer at our firm for a review of your situation.
Many of my clients are surprised to discover that not only do they have a case, but they don’t even have to go through a complicated legal process to get a favourable severance package. I regularly negotiate severance for my clients without even having to take legal action. But if we do need to file a claim against your employer, we can handle it for you.
Have you been wrongfully dismissed? Are you trying to properly calculate the amount of severance pay that is owed to you?
See how much severance you might be entitled to by using our free, anonymous online severance pay calculator.
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Jonathan Margolin is an employment lawyer at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.