Over the course of nearly 20 years of practice and tens of thousands of clients, my employment law team and I have come across many troubling misconceptions about the termination process that have put people at a disadvantage.
Here are the facts behind five of the most common myths about what happens when employment is terminated in Canada.
1. You can be fired without a proper meeting — and for almost any reason
Employees often believe that their employer is legally required to fire them through an in-person meeting, and that a termination by text, email or phone call is somehow illegal.
There is no law, however, that says an employee must be let go in a one-on-one meeting; some employers simply choose to do this out of respect for the employee.
A company can also fire an employee for any reason, as long as that reason is not a discriminatory one.
This is referred to by employment lawyers as a termination without cause and can be applied to multiple scenarios, ranging from the trivial, like wearing the wrong kind of tie to work, to more serious, like failing a performance improvement plan. An employer must provide a severance package to someone fired in this manner.
READ MORE: 5 of the most common employer mistakes — and what employees can do about them
2. You can’t be forced to resign
Some employers attempt to sidestep the termination process by suggesting that an employee resign instead.
They may imply that this is a better alternative for the individual than being fired. But often this method serves only one purpose: to help the company dodge its legal obligation to provide severance pay.
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A genuine resignation can only be made freely and unilaterally by the employee. With a real resignation, an employee decides to leave of their own accord — without compensation — to pursue other opportunities.
If an employee is forced to resign, rather than deciding to do so on their own, they are still entitled to a severance package through a constructive dismissal claim. Employment lawyers, like my team at Samfiru Tumarkin LLP, can help navigate this kind of claim.
READ MORE: What happens if your employer forces you to quit your job? An employment lawyer explains
3. Your employer must give you the proper amount of severance pay
Despite what your employer or government website may tell you, severance isn’t simply two weeks’ pay or one week per year of service. Those are minimum amounts determined by provincial law.
Full severance considers several different factors, including a person’s age, job, years with a company and ability to find similar work. Taking these factors into account can raise the value of a severance package from a few weeks’ salary to as much as 24 months’ pay.
If your employer doesn’t give you the proper amount of severance pay, you can file a legal claim for wrongful dismissal through an employment lawyer to secure the proper amount.
4. You don’t have to sign a severance offer immediately
Companies often put deadlines on severance packages to pressure you to accept a meagre amount of compensation without consulting an employment lawyer. They don’t want you to discover that you could be entitled to more pay to tide you over until you find new work.
According to our legal system, though, an employee can pursue a claim for proper severance up to two years after the day they lost their job — if they haven’t already signed a severance offer.
The problem with signing a severance offer immediately is that it is binding and final, and you can’t take it back — unless you accepted it under duress. So if you sign without consulting a lawyer, you’ve potentially missed out on any compensation beyond what was in the offer.
READ MORE: Do you lose severance if you don’t sign by your company’s deadline? Lawyer explains why not
5. You have the right to seek advice from an employment lawyer about your termination
Your employer can’t bar you from consulting an employment lawyer at any stage of your employment, including when you are fired.
A lawyer can help ensure that you were let go in a proper manner and that your severance package considers all aspects of your employment.
For example, a company may believe that they are justified in firing an employee for cause — or without severance — because they were late for work or failed to satisfy specific performance goals.
Those situations, however, fall well short of justifying a legitimate dismissal for cause, which should be reserved for serious workplace misconduct such as theft or insubordination. Unfortunately, in my experience, many employees accept this kind of termination and go without severance because they don’t understand the extent of their employment rights.
Have you lost your job? Do you think your employer owes you more severance?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, Alberta or British Columbia. Get the advice you need — and the compensation you deserve.
Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. He provides free advice as the host of Canada’s only Employment Law Show on TV and radio.