It happens to most of us at some point that we are dismissed from our job, and the decision is not our own. It could be for any number of reasons. What you don’t want to worry about, however, is whether, when you were terminated, your rights to proper compensation were violated, and you either were not compensated as you should have been, or you were not compensated at all when you should have been.
Considering how vulnerable someone is in that situation, you want to believe that you got exactly what you were entitled to. Unfortunately, many employers and workers aren’t aware of a person’s legal rights at termination. All that to say that any time you have to make a work-related decision, like whether to sign the employment contract, whether to agree to a transfer or that you should take whatever your employer gives you or doesn’t give you when you are terminated, always speak to an employment and wrongful termination lawyer first.
Two common scenarios that involve an employee being improperly terminated include a wrongful dismissal and a termination for cause. Let’s take a look at why they are improper in these scenarios.
Employers in Ontario can ‘fire’ or terminate a non-unionized employee at any time and for any reason or for no reason at all (“without cause.”)
If you are terminated without cause, you are entitled to a reasonable notice period during which you can continue to work before the employment is officially ended. This is to provide you with the opportunity to find a new job. The length of the notice period depends on if your employment contract contains a valid, enforceable termination clause regarding the length of the notice period. A court may find that the termination clause is not enforceable even if you agreed to it. Consult an employment lawyer to have them review the termination clause in your employment contract for their professional opinion.
Courts generally reach their decisions on what a reasonable notice period is by considering factors that include:
- Age of the employee
- Length of the employee’s service
- Level of the position held
- Availability of similar employment.
Alternatively, an employer may choose to terminate the employment immediately and pay you the money you would have earned during the notice period or “pay in lieu” of notice.
They may also offer you a severance package of compensation and ask you to sign an agreement to accept it. You do not have to make a decision to accept their offer on the spot, and, in fact, it’s crucial that you do not accept any severance package until you speak to an employment lawyer first. You are likely being offered considerably less than what you are entitled to.
Termination for Cause
Termination for cause should only be used for the most extreme situations because the consequences of it are severe and can include:
- Losing the ability to apply for Employment Insurance (EI)
- The employer refusing to pay severance.
- Difficulty finding a new job.
The law creates a very high standard for proving that a termination for cause was justified, given the impact it can have on someone’s future. The employer has to show that the employee’s behaviour had happened on several occasions and the employee had been warned or that they committed an act or exhibited behaviour that was so outrageous that it caused irreparable damage to the employment relationship.
Examples of behaviour that can justify dismissal for cause include an employee:
- misrepresenting their background, skills or qualifications at the hiring stage.
- Driving a company vehicle or operating company machinery while intoxicated.
- Fighting with fellow employees.
- Sexually harassing a co-worker.
- Threatening violence.
- Willfully disobeying a reasonable order.
- Stealing or committing fraud.
Unfortunately, it appears that a good number of Ontarians, employees and employers are unaware of how serious a termination for cause must be before classifying a termination as such on a terminated employee’s record of employment (ROE). Employers have terminated employees “for cause” for not showing up to work or calling in, refusing to do work they didn’t feel was safe, for arguing with the employer, etc.
The bottom line is, contact an employment lawyer whether you were terminated for cause, terminated without cause or terminated while applying for, or receiving, long-term disability benefits to ensure your rights are protected.