Being terminated from your job can be a traumatic and confusing experience. Technically, your employer can dismiss you at any time and for any reason. Or for no reason. However, just because an employer has the right to make hiring and firing decisions to suit its organizational needs does not mean it can simply ignore the law.
Yes, you can be fired without a reason but you must be given proper notice or pay in lieu of notice. This is known as termination without cause and it can be for cost-cutting measures or for poor work performance. The reason can be random and seem unfair but the employer is within its rights to end your employment as long as the dismissal is not discriminatory.
You can also be terminated for cause, but it must be for serious misconduct, such as theft. Even then, your employer must be able to demonstrate a progression in disciplinary action and prove dismissal was the only option available.
In law, there is also something known as constructive dismissal. This is an attempt to force an employee out of their job by imposing significant changes to the terms or conditions of their employment without their consent.
The law is constantly evolving with new legislation and court rulings that can change the employment landscape. Most people are unlikely to have a clear understanding of the many aspects of employment law. What constitutes cause, wrongful termination or constructive dismissal can be easily misinterpreted. That is why it is essential to seek expert advice if you have a workplace issue.
In Ontario, employees’ rights are protected by the Employment Standards Act, 2000 (ESA). The Act lays out rules about such issues as minimum wage, hours of work limits, termination of employment, public holidays, pregnancy and parental leave, severance pay and vacation.
The ESA provides that in most cases when an employer ends the employment of an employee who has been continuously employed for three months, the employer must provide the employee with either written notice of termination, termination pay or a combination (as long as the notice and the number of weeks of termination pay together equal the length of notice the employee is entitled to receive). If you have been employed for more than five years and work for an employer with an annual payroll higher than $2.5 million, you are also entitled to severance pay.
If you are a federally regulated worker, such as a bank or airport employee, the Canada Labour Code requires employers to provide a minimum of two weeks’ notice (or more depending on the years of service), in writing, when terminating an employee, plus severance pay.
When you are terminated without cause, you may also be entitled to additional severance for the duration of the common law reasonable notice period.
The difference between being terminated for cause and being terminated without cause comes down to your entitlement to notice or pay in lieu of notice. Essentially, if you have been successfully fired for wilful misconduct, your employer does not have to pay you notice or severance. Being terminated for cause is serious and applies in cases of intolerable workplace misconduct that can include such misbehaviour as sexual harassment, breach of trust, insubordination, assault or theft. Your employer has to prove it has grounds for a termination for cause.
Many factors can come into play when someone is dismissed without cause. A company may want to restructure or is dealing with a downturn in business. Unless you are a unionized worker, you can be fired at any time and for any reason in Ontario. Your employer does not have to justify their reason. However that doesn’t mean they are free from certain obligations.
You must be given reasonable notice of the termination that states when your employment will end. This allows you to seek out other opportunities to find alternative employment while still being paid. You could be entitled to pay in lieu of notice, which compensates you if a notice period is not provided by your employers. There can also be a combination of termination notice and termination pay. If your employer does not provide reasonable notice or pay in lieu of notice, you can file a wrongful dismissal claim.
Notice periods vary depending on your age and years of service. There are basic entitlements laid out in the ESA but many employees will be entitled to more compensation under common law. Under the ESA, if you have been working for your employer for less than a year, you are entitled to receive one week termination notice. If you have been working for more than a year but less than three years, the notice period is two weeks. Thereafter it is one week per year of service to a maximum of eight-weeks’ termination notice. If you have been employed more than five years and work for an employer with an annual payroll higher than $2.5 million, you are also entitled to severance pay of one week per year of service. Beyond the basic ESA entitlements, you can also be entitled to additional severance under the common law for a failure to provide reasonable notice of termination.
While the law uses precedent to determine a just outcome, every case is based on its own merits. What, if anything, you are entitled to in terms of notice and severance and can vary depending on the circumstances, which is why it is in your best interests to speak with an experienced employment lawyer who can explain your rights.
There are no absolutes, even if you have been terminated for cause. The first thing you should know is that you do not have to immediately accept the severance package your employer offers in a termination meeting. It may be in the company’s best interest to get your signature quickly but it makes sense to have any offer vetted by a lawyer to ensure it is fair. It is too late to change your mind once you have signed the agreement.
If the package you were offered is not acceptable you have two years from the date of termination to file a wrongful dismissal claim.
It is especially important to contact a lawyer if you have been fired for cause. First of all, being terminated for cause means you may not be eligible for Employment Insurance. It may also limit your job prospects.
Many employers mistakenly believe that firing someone for cause means they are not obligated to pay severance. But the fact is, the bar for establishing a termination for cause is extremely high and the onus to prove it is on the employer.
Termination for cause is typically reserved for serious issues. To justify a termination for cause, the employer must show the employee engaged in wilful misconduct and that the conduct was both serious and wilful.
If the employer fails to make its case the employee is entitled to damages
For 30 years, the Walter Law Group has been helping clients successfully negotiate better severance packages than they were first offered by their employers. We carefully examine every detail and watch for such things as a non-competition clause, compensation clawbacks, how the money is structured to be paid, tax implications and more.
We work to ensure your future, helping you to keep the most money in your pocket. Contact us today and let’s get started.