This webinar is brought to you by CLEONet

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CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged

communities in Ontario.

About our presenter…

Karen McClellan leads the JUSTICE@work project at the Community Legal Clinic – Simcoe, Haliburton, Kawartha Lakes. As a Staff Lawyer, Karen practices employment and human rights law, with a focus on low-income and vulnerable workers. Her clients include migrant farm workers and live-in caregivers. She has presented on the legal challenges facing workers to community groups, regional clinic training conferences, and provincial and national symposiums. She also served on of the Ontario Bar Association Taskforce on Wrongful Dismissal.

Fired or laid off? Your rights after being dismissed from employment

JUSTICE

@ work

March 23, 2010By Karen McClellan

JUSTICE@work Lawyer

JUSTICE@work

Presented by

Is this presentation for you?

1. You are a non-unionized worker in Ontario, Canada who has been fired, laid off or otherwise left a job

OR2. Your are an advocate, service provider or

ally that a worker or workers may turn to if fired or laid off from a job

JUSTICE

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Disclaimer

This is not a substitute for legal advice.

If you need legal assistance, call Legal Aid Ontario at 1-800-668-8258 and ask to be referred to your community legal clinic.

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Topics covered

1. Events that can result in job loss

2. Your rights when you lose your job

3. How to enforce your rights

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Have I been fired or let go?

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Many events can result in dismissal

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1. Termination letter2. Verbal dismissal3. Lay off – no recall4. Abandonment5. Benefits cut-off 6. Change in ownership7. Employer bankruptcy8. Being forced to quit

(constructive dismissal)

Protect yourself1. Get legal advice about your situation

Legal Aid Ontario: 1-800-668-8258

2. Keep copies of everything (keep at home) - Termination letter - Email and other correspondence - Evaluations, awards, performance reports - Witness names and contact information - Doctor’s notes

3. Write out a diary of events (keep at home)

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Termination letter/Verbal dismissal

• Most common

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Written notice and termination pay

Under the ESA:• After 3 months on job,

employer must give the worker proper written notice of termination—otherwise the worker has a right to termination pay

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No letter + No cause for dismissal = Termination pay

Laid off - no recall

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You must choose:

(1) Consider it a dismissal OR (2) Wait for a call back

When is a layoff permanent?

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Law Employment Standards Act

Common law (judge-made)

Enforcement Ministry of Labour

Court

Factors 13 weeks in a 20 week period

35 weeks in a 52 week period in special circum-stances

What is typical in the company?

What is typical in the industry?

Was a lay off something that was at thought about at the time of hiring?

Signs the lay off is permanent (a dismissal)

– No history of layoffs at the company– Other people have been called back, but not

you– Lay offs were never part of agreement with

company – Somebody else is now doing your old job

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When is a layoff permanent?

Abandonment

• Indefinite leave – often seen when medical condition

and no response to employer messages

• Alleged voluntary resignation• Failure to report • Jail – no right to have job back

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Sick leaves and disability benefits

• Sick leaves are an entitlement under the ESA and under company policy

• Disability benefits are governed by contract – group benefits package

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Sick leaves and disability benefits

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Employer obligation

Employee obligations

to accommodate medical conditions, subject to certain conditions

to provide information:1. in a timely manner2. in compliance with company

policy3. sufficient medical information

from doctor, as requested AND4. Including prognosis and

expected date of return to work

Sick leaves and disability benefits

Protect yourself• Get legal advice right away• Ask you doctor how much time you need off

– an indefinite leave could be abandonment/frustration – if you have benefits, consider insurance claim for

Long Term Disability (LTD) or Short Term Disability (STD)

• Protect yourself from dismissal on sick leave– respond to employer inquires in a timely manner– provide medical information, as requested– keep in touch with employer– Keep a record of all correspondence with employer

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Change in ownership

Protect yourself• Get legal advice before signing any

contract• Restructurings common in bad economy

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Bankruptcy• Often termination by court order• Same rights-but different mechanism for

enforcement• Key issue is who gets paid first (i.e.

workers or other creditors)– Unpaid wages (vacation pay) get priority– Termination pay priority depends on whether

claim is made under the ESA or common law

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BankruptcyProtect yourself• Get legal advice• Watch for correspondence from trustee, receiver

or company• If you’re owed money, notify the

Trustee/Receiver in writing• Find out which bankruptcy law applies: CCAA or

BIA?• Determine if you are owed

– unpaid wages (including vacation pay)– pension benefits– termination pay and severance

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Forced to quit• Told “resign or be fired”• Material change*

– Duties– Salary– Location*Unless you accept the change

• Harassment, bullying– As of June 2010—report violence to

Ministry of Labour as safety risk• Discrimination

– Human rights complaint• If you are safe, get legal advice

before you quit

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See webinar: Forced to quit? Constructive, Dismissal, Discrimination, Harassment

I’ve been fired, what are my rights?

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I’ve been fired, what are my rights?

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1. Notice or notice pay2. Severance (if eligible)3. Unpaid wages4. Benefits in contract5. Onus on the employer to

prove cause allegations

Your rights when fired or let go

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Who Source of rights

Employees without contract

Employment Standards Act OR Common Law

Employees with contract

Contract**can’t be less than ESA –

other rules apply too

Federally Regulated

Canada Labour CodeOR Common Law

Unionized Collective agreement

Independent contractors

Contract

Your rights when fired or let go

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Employees without contract

ESA/CLC or Common Law

Termination pay (sometimes severance too under ESA)

Employees with contract

Contract (can’t be less than ESA)

Depends—sometimes termination and severance and/or balance of contract

Unionized workers Collective agreement

Grievance process

Independent contractors Contract

Contract rights, which are enforceable in court

Notice and notice pay

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You can be fired at any time so long as you are given notice (advance warning) or pay instead

of notice

• Pay instead of notice is called termination pay

• No termination pay if you are fired for cause

How much money am I owed?Depends on situation• Minimum termination pay is set out in law

– You can go to court to get more – If fired for cause or you quit or abandon your job, no

termination pay• Workers also get severance pay in some cases • If fixed-term contract, termination pay may be

set out in contract and/or you may also be entitled to all or part of the balance of contract

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Employment Standards Act

Termination pay• Minimum termination pay set by law

– After 3 months employment, 1 week for every year worked up to 8 weeks (8+ years)

– Special rules if more than 50 workers are terminated at an employer's establishment within a four-week period

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Severance pay• Severance pay is in addition to termination pay

Eligibility: • Worked for five or more years

and • Employer has a payroll in Ontario of at least $2.5 million;

or • Employer let go 50 or more workers in a six-month

period because all or part of the business closed.

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Employment Standards Act

Common (judge made) law

Termination pay• A court may award more termination pay

than the ESA minimum– Considerations

1. Length of employment2. Age of worker3. Type of employment4. Availability of similar employment

– Subject to mitigation• court will deduct any new wages earned in the

notice period

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Employment contracts

• Rights spelled out in contract• Rights can’t be less than those in the

Employment Standards Act• Can’t contract out of the Occupational

Health and Safety Act• Contracts imposed on workers unfairly can

sometimes be put aside

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Discrimination, violence, reprisals

• No discrimination on Human Rights Code grounds

• Right to violence-free workplace • No reprisal for enforcing rights under

Employment Standards Act or Occupational Health and Safety Act– Reinstatement possible

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Discrimination

• Human Rights only prohibits discrimination on the following grounds:

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▪ race ▪ ancestry▪ place of

origin ▪ colour▪ ethnic

origin▪ citizenship

▪ sex (including gender identity)

▪ creed (faith, religion or system of beliefs)

▪ the receipt of public assistance

▪ sexual orientation

▪ age▪ marital status▪ family status▪ disability (or

perceived disability)

Violence and reprisals

• Unsafe work - Occupational Health and Safety

• Bill 168 (June 15, 2010) – extends Occupational Health and Safety Act to include violence in the workplace

• If you refuse work, make a complaint to the Ministry of Labour - 1-800-268-8013

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Cause alleged

• Onus is on the employer to prove cause• Cause is often alleged by employers, but

this is difficult to prove • If cause is proven, the worker gets no

termination pay

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‘For Cause’ allegationsSerious misconduct

– Theft– Dishonesty– Insubordination– Breach of Employer’s Rules/Company

policies– Persistent Absenteeism or Lateness– Sexual Harassment– Intoxication

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‘For Cause’ allegations

Minor misconduct– Absenteeism/Lateness– Personality Conflict– Poor performance

• Persistent inability of employee to perform job duties or meet job requirements

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Frustration of Contract

• Incapacity to perform work (frustration)– Permanent disability or injury that cannot be

accommodated by the employer without undue hardship• Alcohol or drug ad diction that cannot be

accommodated

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Proportional Approach

• Proportional approach to dishonesty and other types of misconduct

• Evaluating the case• Written warnings for misconduct• Content of written warnings• Meetings with supervisors• Condonation of misconduct• Prejudice to employer

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• Mitigating factor of long service & loyalty• Intent (dishonesty, insubordination, policy

breach)• Examples of courts’ application of

proportionate approach:• Sexual harassment• Theft/dishonesty

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Proportional Approach

How do I enforce my rights?

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How do I enforce my rights?

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1. Collect information2. Get legal advice3. Decide how to proceed

• Ministry of Labour• Federal Department of Labour• Small Claims Court• Superior Court of Justice• Human Rights Tribunal of Ontario• Canadian Human Rights Commission

Step 1 – Collect informationProtect yourself1. Don’t accept an offer or sign a release before

getting legal advice2. Keep your documents

• Record of Employment• Termination letter• Settlement offer and release• Emails, letters, medical, performance reviews

3. Start a diary of key conversations and events4. Start and record mitigation efforts

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Step 2 – Get legal advice1. For free legal advice, call Legal Aid

Ontario at 1-800-668-82582. To find a lawyer, call the Law Referral

Service at 1-800-268-8326 3. If you have been subjected

discrimination, call the Human Rights Legal Support Centre at 1-866-625-5179

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Step 3 – Decide how to enforce1. Ministry of Labour/Department of Labour

– Federal Department of Labour for federally regulated industries: Banking, inter-provincial transport, television, radio, airlines, phone companies, port authorities, First Nations, federal agencies

2. Court– $25,000 or less – Small Claims– Over $25,000 – Superior Court of Justice

3. Human Rights Tribunal– Broad remedies, including compensation for loss of earnings– Canadian Human Rights Commission for federally regulated

industries

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Ministry of Labour

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• Employment Standards Act• ESA minimum termination pay only• ESA severance (if you the meet criteria)• Simple complaint form• Ministry of Labour investigates• No risk of costs if you lose

Ministry of Labour

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Length of Employment Notice Required

Less than 3 months None

3 months but less than 1 year 1 week

1 year but less than 3 years 2 weeks

3 years but less than 4 years 3 weeks

4 years but less than 5 years 4 weeks

5 years but less than 6 years 5 weeks

6 years but less than 7 years 6 weeks

7 years but less than 8 years 7 weeks

8 years or more 8 weeks

Calculating termination pay

Ministry of Labour

• multiply the regular wages for a regular work week by the sum of: – the number of completed years of employment;

and – the number of completed months of employment

divided by 12 for a year that is not completed. • 26 weeks is the maximum amount of

severance pay set out in the ESA

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Calculating severance pay

Ministry of Labour

Reprisals• Enforcing Employment Standards Act

rights• Occupational Health and Safety

– Reinstatement a potential remedy

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Court• Common law (judge made law)• A number claims can be considered by the

court at the same time including:• Termination pay and unpaid wages• Discrimination on Human Rights Code ground• Mental distress• Defamation• Aggravated damages (bad faith conduct)• Punitive• Special damages (moving costs, job search expenses etc…)

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Court

• Complex process

• No investigation• Scarce legal aid

By Ministry of Attorney General

Court

• Termination pay based on four factors:1. Length of service2. Type of work/job duties3. Availability of commensurate employment4. Other: health/pregnancy; education; prior work experience

• No set rule • range is 2.5 weeks to 1 month per year of service

• Subject to mitigation• new income in the notice period is deducted

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Calculating termination pay

Court

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• If you were recruited, your length of employment for the purposes of calculating termination should include the previous job

• Detrimental reliance

Mitigation

• Duty of employee to attempt to mitigate losses flowing from dismissal

• You need to look for a new job• It is up to the employer to prove:

1. Employee failed to mitigate;2. Employee could have found commensurate employment if

she/he had tried

• “Commensurate” employment availability• Practical aspects of the current economic crisis

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Costs• If you lose, you may have to pay costs

– Costs are the court’s estimate of the legal expenses of your former employer because of your case

• If you win, but are awarded less than what your employer offered you, you may also have to pay costs

• Once you start a court action, can’t abandon it without the other side’s consent – without consent you could be ordered to pay costs

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You can’t go to court and the Ministry of Labour

• Dismissed workers can pursue unpaid wages and termination pay in two ways:

1. Employment Standards Act (ESA) complaint to the Ministry of Labour OR

2. Action in court for wrongful dismissal.

• You cannot do both

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Important deadlines

• There are deadlines for filing a claim– ESA complaint must be made within 6 months – Court action must be started within 2 years.

• If you make an ESA complaint, but now want to pursue the matter in court, you must withdraw your ESA complaint within 2 weeks

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Claims under $25K - choosing

Ministry of Labour Small Claims Court

• Short-term employment• Entry level specialization• Little training/education required• Qualify for severance pay• termination pay and/or unpaid wages the only claim• unclear if claim will be successful

• Long-term employment• More specialization• Formal training/education req.• No severance under the ESA• other legal claims in addition to termination pay/unpaid wages• access to legal representation• claim is older than 6 months• claim is for over $10,000

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Fighting an allegation of cause

Get legal advice• It is up to the employer to prove cause• Look for performance reviews, awards,

emails etc. that are inconsistent with employer’s allegations

• Look for failures to investigate

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Questions and discussion

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