Introduction to Employment Law
One of the most common issues we deal with in employment law is when somebody gets fired.
Employment law is a multifaceted area of law that includes multiple tribunals and the courts. Where you take your employment matter depends on your issues are about, type of employment and if you have a union. This section is too complicated to review all the avenues you can take. However, we can give a general overview on what happens if you are wrongfully fired.
I Was Fired. What Can I Do About It?
What is Just Cause Dismissal?
In general, most people that approach us with employment issues have been fired from their jobs. This can happen in many ways. Sometimes, the business you are working for can no longer afford to keep you. Maybe they are changing the way they are organized and your job is eliminated. In general, when this happens, your employer will offer you a “package”. The “package” they offer is usually more generous than that offered under the Employment Standards Act. If this happens, you should seek legal advice to make sure the package is right for you.
In other cases, you were fired because there was a conflict between you and your employer. Or, your employer feels you are no longer meeting the performance standards of your job. The courts have defined “just cause” dismissal. If you are “justly” dismissed, your employer does not have to pay you any termination or severance pay. “Just cause” dismissal, in short, means that the contract between you and your employer cannot continue under any grounds. The breach was so severe, the relationship can no longer be maintained or even repaired.
Some examples of “just cause” dismissal include stealing, operating a competing business while still employed or violent confrontations. There are other acts that can also constitute “just cause” as well. Some of these acts require warnings and being “written up” first. Some rare acts can result in immediate termination of your job.
What if I was Terminated for “Unjust Cause”?
There is so much written in the law review, case precedents and employment texts about “just cause”. However, you would not be seeing us if you felt your boss was justified in firing you. There are different ways of approaching this issue, depending on your situation. If you are part of a union, we cannot do much for you but assist you in working with your union and filing a grievance. Your union should be taking it from there. If you are not part of a union, then we can help.
The first thing we want to see is your employment contract, if there is one. We look for various types of clauses. One clause we look for is a clause that might limit your rights to termination pay if you were fired. This does not necessarily mean you can’t fight for more termination pay, especially if you feel you were fired for certain reasons. The real purpose of these clauses is to protect the employer in the event that they need to lay you off or for certain other reasons. Disputes involving human rights, health and safety, workplace bullying, and similar situations, may still allow you to claim for more termination pay.
We may wish to see any performance reviews, letters of reprimand, employee policies, among other things. These items can help us in determining if there was “unjust dismissal”. We would also want to see letters, emails, texts and any witness statements, if available. This may help us determine the best forum of jurisdiction as well. For example, if there appeared to be harassment or differential treatment based on human rights grounds, we may seek remedy through a human rights tribunal.
Where Can I Take My Complaint?
As stated above, human rights tribunals are charged with dealing with complaints about violations of human rights. If your employer is federally regulated, we apply to the Canadian Human Rights Commission, or if provincial, the Human Rights Tribunal of Ontario. These violations can include terminating your employment, denying a promotion, not hiring you or failing to accommodate you, or harassing you due to reasons like race, gender, disability or sexual orientation. A human rights case be won if it can be proven that at least part of your dismissal is based on human rights.
If your dispute was regarding overtime, minimum wage, vacation pay or other rules that the province sets out for employers in respect to their employees, you may wish to take your complaint to the Employment Standards Branch (ESB). If you believe your employer fired you for trying to enforce your rights in these areas, you can also file for a reprisal complaint through this Branch as well.
What happens at this level is that if you take this through the ESB, an officer will investigate and ask your employer to respond to allegations. After hearing from your employer and getting further feedback from you, they can make a ruling. Their rulings are enforceable. If the employer or the employee disagrees with the officer’s ruling, they can choose to take the matter to the Ontario Labour Relations Board. If the employer is the one that disagrees, they may be asked to pay the amount ordered into trust in order to take this to a formal hearing. This can be a deterrent for defense, particularly for small employers, who may have a good reason to dispute an order.
Going to Court
The final way one can take action is through the courts. We can handle any complaint for a value of $25,000 and under. Court proceedings are most appropriate in cases where there is a dispute regarding “just cause” dismissal. Another reason you may wish to take a matter like this to court is for what is known as constructive termination. Constructive termination is when your employer does not necessarily fire you, but made your work environment toxic for you. This “toxic” environment must be so bad, that you may be unable to maintain your side of the employment contract.
If you think your employer has “constructively dismissed” you, you can also fight this in court. My first piece of advice for you if you were “constructively dismissed” is not to quit. Document as much as you can. If it becomes unbearable to the point that your health is affected, go on a medical leave. Your employer cannot deny you a medical leave, but does not necessarily have to pay you (unless they offer short term medical benefits). Your employer cannot fire you because you went on medical leave for this reason alone.
So My Employer Has to Pay Me. How is That Determined?
There is a famous decision called the Bardel decision, which tended to be the ‘rule of thumb’ for many years. This scale based your severance rights on length of service, age, salary and type of job. Many legal firms continue to use what is called a severance pay calculator. As time went on, additional factors were put into play, such as manner of termination, human rights concerns, among other things.
However, many human rights cases threw the whole concept of length of service out the window. For example, one employer was forced to pay $85,000 in damages to a former employee after a human rights tribunal found the employer liable for discrimination against him after only a few days on the job. Keep in mind, however, rulings from human rights tribunals are not related to severance pay. They relate more closely to damages resulting from discrimination, lost income and manner of treatment (e.g. this employee was blatantly violated).
Can An Employee Quit Without Notice?
Now, we have heard much about how an employer may have to compensate an employee for unjust termination. Do employees hold any obligations to their employers? Yes, they do! According to one case, an employee had to pay HIS EMPLOYER $35,000 for suddenly quitting his job disallowing his boss to manage this transition. There are several other cases where this occurred.
There are not many legal cases where an employer sues a former employee for lack of notice. However, courts have and can hold employees liable in specific cases. For example, if the employee was a fiduciary or held access to a considerable amount of confidential information. It might be wise for an employer to draft the employment contract, outlining how much notice is needed if an employee quits. It might also be wise to include a non-competition and non-solicitation clause in the employment agreement. Be careful to ensure the terms are reasonable to allow your former employee to work. You may restrict who they can work with, a specific geographic area or set a period of time, but such restrictive terms must be reasonable.
If an employee quits without notice, the damages are assessed using the costs incurred by the employer as a result of the loss of that employee. Invictus Legal can advise an employer if you have a case in these circumstances.
Contact Invictus Legal LLP if you feel you have an employment issue you want to discuss with us.