What is wrongful dismissal?
When an employee works for a company and signs a written employment contract or verbally accepts a position and its duties, the company is obligated to maintain the relationship unless there is “just cause” to disrupt the agreement and fire the employee. The employee is also obligated to meet the details in the employment agreement. The employee’s poor conduct, behavior or inability to perform the agreed-upon duties are inappropriate and are legal reasons for dismissal.
A wrongful dismissal in Ontario would be termination without advanced warning or a severance. That means the employee must be given advance notice that their position at the company is no longer needed. If the company elects to bypass the advance warning threshold, then fair payment, in the form of a severance, must be provided. That, of course, is in an ideal world. All too often, employers terminate workers for other company-centric reasons, such as downsizing, reorganizing, etc. Many companies dismiss employees when their financial situation changes negatively. They may call it a “lay-off” or suggest the position is being revamped, when it is clearly unlawful termination.
On a brighter note, proving the employee has been legally terminated is difficult, if not impossible, if there was no “just cause” that pertains to the employee’s performance. Under those circumstances, employers get worried when the dismissal is contested, which makes the legal options well worth investigating. Some company executives don’t fully understand that the fine details of the employment contract must be upheld and if any are breached, the termination is unlawful. On top of that, there are statute provisions and rules in employment law, which if not followed correctly, provide another avenue that may work in your favor.
If you are a victim of any of these scenarios then a wrongful dismissal consultation should be the first step you take as you go out the door. When you hire an experienced lawyer who has handled a myriad of cases in the employment arena your chances of winning improve tenfold. These are just a few reasons why you should never try to fight a former employer for damages without a legal advocate who understands the ropes.
How to know when a wrongful dismissal occurs?
Although employers may prefer to believe that reasons for dismissal are black and white, there are specific guidelines by which an employee can be dismissed. As mentioned earlier, two of the most prominent unfair dismissal actions happen when an employee is terminated without notice or without a severance package. A severance package should include both payment and benefits that will provide some financial assistance to the terminated employee while they seek other employment.
The situation becomes complex when specific details are not previously determined in the employment agreement. How much severance does the employee deserve? Most of the time, it depends on several factors, such as age, years of service, disposition of employment, and anticipated difficulty in finding new employment. Yet, the employer doesn’t always take those aspects into consideration.
As an example, if you are a 40-year-old brain surgeon, who has worked for a private medical practice for 10 years and are let go, and there are only ten other brain surgeon positions within a 100-mile radius, you could expect the severance to be reasonably high. Conversely, if you are a 24-year-old office building janitor who has worked for the company for less than two years and dismissed, the severance is not likely to include a long-term financial package. Make sense? That is to assume the employer has produced a fair exit package.
When an employee is not let go, but the terms of their employment are drastically changed and the employment contract breached, it is also considered an unjust dismissal. This tactic is often used when an employer tries to push an employee to resign by creating a confrontational or disjointed situation. The resignation is not deemed elective, and is considered a termination as it is another type of breach within the employment contract.
Federal or Private Sector Employment
There are also employment differences depending on whether you work under federal jurisdiction or in the private sector. If you work for an airline, government agency or bank, the Canada Labour Code (Part III) spells out the provisions you can expect for being wrongfully dismissed. The dismissal law states the employee must have worked for at least 12 months continuously for the same federal agency or employer.
If you work in the private sector Canada’s Employment Standards Act (ESA) provides only a minimum severance if the company is simply downsizing. However, the good news is that if you were let go unjustly, there are additional benefits that are greater than the ESA provides.
Wrongfully dismissed employees have entitlements
You already know that you can expect an advance notice period before losing your position or a severance package that is befitting to your personal situation within the company. There are no published scales by which a company must follow in terms of severance amounts and benefits. Most companies will attempt to derive what they consider to be a reasonable amount, but in actuality, the compensation offered is going to be much lower than what is entitled.
If you have been in this situation, we realize it is tempting to agree to the severance, particularly when stuck in the spotlight of an unexpected and unwanted dismissal. But before you move on with your life, don’t settle for a less-than-reasonable severance. It is not recommended.
It is extremely possible that you may be entitled to much more than you are offered. By accepting your employer’s severance package, you may be signing away your right to sue for additional severance pay and other compensation amounting to months or even years of wages.
Keep in mind that there is more to a severance package than compensation. A non-compete clause is often included, which would prevent you from using your expertise to work for a parity or support company for a minimum of one year. How could you further your career without being able to apply to positions for which you are qualified?
The best way to handle an exit meeting
Do not feel uneasy and stay in control of any impulse actions during an exit meeting. Go ahead and sign an exit or separation agreement, but make it clear that you need to get legal advice in Ontario on the unjust dismissal. You may not get a positive reaction by stating your point-of-view; however, signing off on the package will conclude the dismissal as fair and will be extremely difficult to reverse.
You owe it to yourself to find out if a lawsuit would have more favorable results. Once you leave the office, don’t wait to contact an employment and labour law attorney. Filing a claim before consulting with a legal professional is not recommended for many reasons. The timeliest reason is that there is only a short period within which you can withdraw the claim and file the lawsuit.
Modesty aside, we are Canada’s leaders in employment and labour law
That doesn’t make us the most expensive; it makes us the top law firm that understands what it takes to get the best outcome efficiently and effectively. Why? Because as the strongest and most experienced employment and labour law firm in Toronto we strive to provide results-oriented unfair dismissal representation second-to-none.
Sure, there are plenty of law firms that can handle an unlawful dismissal case, but we have thousands of case studies that demonstrate our abilities to help turn lives around and get them back on track. We want you to be able to breathe a sigh of relief and regain full confidence knowing you have the best wrongful termination lawyers in Ontario.
We approach our clients’ cases with a thorough and detailed process. Everyone’s case is slightly different, so this is an example:
- Confidential consultation: This is your opportunity to tell all – how the company handled your dismissal, the exit documents they wanted you to sign, and any negative nuances or situations that were intended to push for a resignation.
- Follow up strategy meeting: Your Levitt LLP lawyer will work with you to determine what you are entitled to receive and further pursue that amount from your former employer.Together, you will document the reasons why the severance package was not appropriate and therefore, not signed.
- Employer negotiations: Your former employer will be contacted in the event there is interest in an appropriate settlement. If this step is rejected, proceedings for a lawsuit will commence.
- Evidence gathering: Although we will already have your initial statements and evidence, we may wish to go to greater lengths to get additional information that will reinforce your position. That may include examples of your work and past performance reviews. We may also want personal statements from work associates with whom you worked closely… or even outside vendors who can vouch for your skills and abilities from having had direct experience and contact with you.
- Demonstrate our intention to win: When we know your case is genuine and the time has been taken to pull together all of the loose ends, there is only one objective and that is to win the case on your behalf. Besides the financial aspect of the situation, the unfair dismissal probably diminished your pride and put you in a position of uncertainty and instability. We would like nothing more than to watch you walk away with everything you deserve and resume your life with your head held high. Case closed. Life continues on a much happier note.
Levitt LLP is your employment and labour advocate
There are times to relent and times to push back. Wrongful dismissals are not fair, nor reasonable. You work too hard to be tossed aside when it is convenient and deemed unnecessary in lieu of a company’s bottom line. If this has happened to you, a loved one or an associate, don’t hesitate to take action or spread the word. We are in business solely to support those who have been unfairly removed from their jobs and don’t know how to rectify the situation.
We have two locations in Toronto and look forward to providing an in-person consultation or face-to-face video call when we can learn all the details. The fastest way to get started is to set up a consultation here or call (416) 594-3900.