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Since 2003 Matt Lalande has been representing victims terribly hurt by others. As a part of our practice, we represent many victims who get fired, have return-to-work problems, job re-entry issues, rehabilitation issues, work burnout, depression in the workplace, harassment, and discriminatory work environments. As a result, we have developed extensive trial experience assisting employees who have been wrongfully terminated.
What is wrongful dismissal all about? Unfortunately, many people have a misconception about what wrongful dismissal and severance mean. 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 wrongful dismissal lawyer from our firm in Hamilton can paint a clearer picture for you.
An employer in Ontario has the full and total right to terminate a contract of employment of indefinite hiring if the employer pays the employee appropriate notice. 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 Termination requirements 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.
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 or less because of a permanent discontinuance of all or part of the business.
To be eligible for severance pay in Hamilton, employees must have worked a minimum of five years with an employer—and the entitlement to severance is calculated differently from above.
A wrongful dismissal, however, is something different. Employment agreements for any job, whether implied or written, are contracts. Contracts must comply with the law. If an employer is going to terminate an employee, it must lawfully terminate an employee by providing sufficient notice of that termination.
The dismissal, if wrongful, constitutes a breach of contract, allowing the employee to sue his or her employer for damages.
The primary purpose of reasonable notice is to give the employee an opportunity and a reasonable period of time to search for other employment. The period of notice is not necessarily equivalent to the period required to find new employment. The obligation of the employer is to give reasonable notice; failure to do so will expose your employer to damages for the loss of salary and benefits you would have received during the period of reasonable notice.
If you have signed an employment contract and you and your employer previously agreed on the length of notice you would be given in the event of your termination, then those terms would generally govern unless you were coerced or influenced to sign the employment agreement. Otherwise, what you signed off on will generally govern.
If you have been fired for cause, you will not be entitled to Hamilton wrongful dismissal damages. “Terminated for cause” means that you have been guilty of serious misconduct, habitual neglect of duty and incompetence, or conduct incompatible with your duties—behaviors that are prejudicial to your employer’s business. The onus is on your employer to prove cause, and it has been repeatedly described as a high one to discharge.
In other words, your employer must show that your conduct was misconduct of the most serious kind. If your employer is successful in showing cause for dismissal, you will not be entitled to compensation in your Hamilton wrongful dismissal case.
If you are a unionized employee, you will more than likely be covered by a collective agreement and will generally not be able to bring an action for wrongful dismissal into court. If a dispute arises under your collective agreement, such as termination of employment, the dispute would likely go through the grievance arbitration process under your collective agreement.
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 Personal Injury 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 cannot see everyone. What we do however is offer a free Province wide phone consultation to determine if you have been wrongfully terminated. If we believe that you may have a case, then we will meet you and provide you with the appropriate employment law legal advice at no cost to you. Please call us at 905-333-8888 or fill in a contact form. We would be happy to speak to you about your situation.
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