Peterborough Employment Lawyers

Quantifying notice is an art, not a science. The major factors a Court will use to determine appropriate notice are the individual’s age, position, years of service, and the availability of alternate employment, taking into consideration the employee’s education and training. However, there can be literally hundreds of other factors that may be relevant in determining notice in any particular case.

The Supreme Court of Canada has stated that notice will be determined by the facts of each case. Therefore, it is important to obtain legal advice from a Toronto employment lawyer to assess notice in your matter with reference to all of the factors relevant to your particular case.

Getting terminated from work can be one of the most traumatic experiences in a person’s life. An added stressor in a termination meeting may be a demand by the former employer that the employee agrees to terms of a severance package. The easy response is to sign on the dotted line, accept whatever the employer is offering, and move on. However, like most things in life, the easiest option may not always be the best.

The biggest and worst mistake that a terminated employee can make upon dismissal is to accept the initial severance offer, whether because it is easy or there is pressure placed on them by the employer to do so. It is crucial to seek legal advice from an employment lawyer in Toronto on the offer before you sign back or agree to anything. If the offer is reasonable, it will likely be there after you have obtained advice. The more pressure that is put on you by the employer to sign, the greater the likelihood that the offer is unfair and unreasonable.

Many people assume that any severance package they receive is fair and that their employer would never try to take advantage of them. This ignores the simple fact that the employer is running a business and it makes good business sense to pay less rather than more. Using that basic principle, it is rare that the opening offer will be the best one. Usually, the employer will leave itself some room to negotiate with those employees who come back with legal counsel and ask for more.

There is, however, a certain level that an employer cannot go below. These payments are called statutory termination and severance pay and they are a minimum legal entitlement provided under the Ontario Employment Standards Act, 2000 (the ‘Act’). Termination pay is equal to one week per year of service up to a maximum of eight weeks, and severance pay is the equivalent of one week per year of service (or part thereof) up to 26 weeks. Severance pay under the Act is only paid if the payroll of the employer exceeds $2.5 million and the employee has more than five years of service.

An employer cannot offer less than the minimum statutory payments described above. But what if the employer adds a few weeks to that minimum payment? To most people, it may appear that the employer is being generous, when in fact it is not. As an example: take a five-year employee who is entitled to severance and termination pay in the equivalent of 10 weeks. In that situation, the employee is entitled to 10 weeks’ pay at an absolute minimum and without signing a release. If the employer seeks a release from any further entitlements in exchange for 12 weeks pay, the employee would receive only two weeks over Employment Standards minimum payments. In exchange, the employee would be giving up their “common law” rights to damages for Wrongful Dismissal, which could represent several times what the employer has offered.

As noted above, common law entitlements to notice are based on several factors including the person’s age, position, years of service, and the availability of alternate employment taking into consideration the employee’s education and training. Unlike statutory notice, common law “reasonable notice” is not fixed but is based on what a Court believes is reasonable in the circumstances. In monetary terms, an employee could be leaving tens of thousands of dollars on the table – or more.

It is crucial to understand that Employment Standards minimum payments are payable without an employee having to sign any release whatsoever. In other words, the employer would be obligated, in the above example, to pay 10 weeks’ pay and the employee would retain the right to bring a claim seeking additional common law notice. In that case, the statutory minimum payments would be considered a down payment on the total amount of notice that an employee is entitled to.

It is therefore extremely important that an employee understand what minimum payments they are entitled to. The closer the offer is to the minimum amount, the worse the offer. The quantification of common law damages is in most cases significantly greater than the minimum payments owing under the Act – the specific amounts can only be assessed by a qualified lawyer.

An employer who dismisses an employee without cause is obliged to provide notice of termination or payment in lieu thereof. The minimum notice owing for provincially regulated employers are set out in Ontario’s Employment Standards Act, 2000 (the ‘Act’). For federally-regulated employers, statutory obligations upon termination are set out in the Canada Labour Code. In addition to notice, employees with five years or more of service and who are either part of a mass termination or were employed by an employer with a payroll of $2.5 million or more, will be entitled to severance pay.

These payments are mandated by statute and must be made within seven days of termination or by the employee’s next pay date. These payments, however, do not exhaust the rights of a dismissed employee under the common law or by operation of other statutes such as the Ontario Human Rights Code. Further remedies, however, may and often do require the commencement of a civil (court) action for wrongful dismissal or a complaint to the Ontario Human Rights Tribunal if discrimination is at issue.

At termination, the employer may offer the employee a ‘termination package’ or severance offer. This is usually set out in the letter of termination and describes the payments, benefits, or other items, such as a letter of reference, the employer is prepared to provide upon termination. Termination packages are often made conditional upon the signing of a Release by the employee. The Release is a contract that spells out the payments and any other consideration to be provided by the employer in exchange for a release by the employee from any further legal claims they may have against the employer with respect to their employment and/or termination of employment. Put simply, if an employee signs the Release, they are accepting the employer’s offer in full and final satisfaction of any claims they may have and will therefore not be able to pursue any further legal action against the employer.

The Release typically contains the type of jargon or “legalese” that is familiar to lawyers but not to most employees confronted with the document. Given what is at stake, employees are always advised to refrain from signing a Release until they have obtained legal advice. The value of the offer is dependent upon a whole host of factors such as the damages for wrongful dismissal the employee can obtain as well as the other remedies they can pursue. Few employees have the legal expertise to make a proper assessment on their own of the offer contained in a termination letter or the conditions contained in a Release. Pressure to sign on the spot should immediately raise suspicions that the employer is seeking to have the employee agree to a bad deal and should be resisted at all costs.

No action is required by an employee and specifically, no forms must be signed in order to receive employment standards notice or severance payments from an employer. An employer therefore has no right to a Release in exchange for employment standards payments. Unfortunately, this will not stop some employers from making such payments conditional upon a Release in order to avoid or at least discourage legal action on the part of a terminated employee. There is no benefit to an employee in signing a Release under these circumstances as the employer is obliged to make payment of employment standards entitlements even if the employee refuses to sign.

While the following discussion of termination packages generally applies to all terminated employees, it should be noted that the employment standards minimum payments referred to in the article are those specifically set out in the Act.

Being terminated can be one of the most traumatic experiences in a person’s life. In the normal course, and when cause for dismissal is not alleged, the legal issue to be resolved is whether the payment offered by the employer is appropriate. This is routinely resolved through negotiation with or without the assistance of a lawyer. But what if the employer alleges cause, and offers nothing? What does one do?

Whether ‘appropriate cause’ exists is a legal issue and should be discussed with a Toronto employment lawyer. There are some cases where cause is obvious. There are some cases where there is doubt which way a Court would decide. Finally, there are cases where it is obvious that no cause exists and the employer makes the allegation simply to make life more difficult for the employee or to obtain an advantage in negotiating a reduced severance package. In the latter situation, a Court can award additional damages for the conduct of the employer.

If the employer does not have appropriate cause to terminate, the employee is entitled to minimum payments of up to eight weeks’ termination pay and up to 26 weeks’ severance pay.

The termination/severance provisions of Employment Standards Act (the ‘Act’) are set out below:

Termination Pay

(a) At least one week notice (or pay in lieu of notice) if the employee’s period of employment is less than one year;

(b) At least two weeks notice (or pay in lieu thereof) if the employee’s period of employment is one year or more and fewer than three years;

(c) At least three weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is three years or more and fewer than four years;

(d) At least four weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is four years or more and fewer than five years;

(e) At least five weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is five years or more and fewer than six years;

(f) At least six weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is six years or more and fewer than seven years;

(g) At least seven weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is seven years or more and fewer than eight years; or

(h) At least eight weeks’ notice (or pay in lieu thereof) if the employee’s period of employment is eight years or more.

Severance Pay

An employer that severs an employment relationship shall pay severance pay to the employee if the employee was employed by the employer for five years or more and,

(a) the severance occurred because of permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or

(b) the employer has a payroll of $2.5 million or more.

Severance pay shall be calculated by multiplying the employee’s regular wages for a regular work week by the number of years (or part years) of employment the employee has completed to a maximum of 26 weeks.

If you have been terminated for cause and without any payment whatsoever, it is a natural instinct to contact the Ministry of Labour. The Ministry of Labour will be able to provide information as to the statutory severance and termination payments owing if appropriate cause cannot be proven. However, there are several reasons why filing a claim with the Ministry of Labour could prove to be a disaster.

What You See is Not All You Can Get

If an employee files a claim for Employment Standards minimum payments with the Ministry of Labour, then they are precluded from bringing a further civil action seeking common law notice for Wrongful Dismissal. As discussed above, damages for Wrongful Dismissal are almost always significantly greater than Employment Standards minimum payments. An employee terminated for cause has to choose only one – file a claim with the Ministry of Labour for Employment Standards minimum payments or seek common law reasonable notice on account of Wrongful Dismissal. It is clear that filing a claim for Employment Standards minimum payments would cause significant prejudice to the employee, as they would be giving up the right to pursue a claim that could potentially be worth several times more.

The Employment Standards Act gives with one hand and takes away with the other. It provides a process for employees to recover unpaid termination and severance pay owing under the Act. However, it simultaneously disentitles employees from seeking additional payments for Wrongful Dismissal, which could be worth significantly more. Ultimately, you can only choose one – and it is important to choose wisely.  

With that in mind, one should understand that filing an Employment Standards claim should only be made in very limited circumstances. It is important in all cases to seek legal advice from a Toronto employment lawyer before any action is taken.

A termination of employment, whether with advance notice or without, often presents a life-changing situation fraught with uncertainty. The steps that you take immediately following your dismissal from work can have a huge impact on your future. The employment lawyers at Marvin A. Gorodensky Professional Corporation recommend that you do not sign any legal documents, such as releases or waivers, and that you immediately seek a review of your case by experienced lawyers.

A Wrongful Dismissal is defined as a dismissal without appropriate notice. Whether the termination was fair or unfair is irrelevant in respect to determining your entitlement to notice. However, there are sometimes additional types of damages that an employee might be entitled to where the employer misconducts itself, such as when the termination was undertaken in “bad faith”, and which causes the employee emotional or mental distress. It is important to know that this means something more than the feelings of upset or stress that are typically associated with any dismissal from employment. An employer is legally obligated to conduct itself in a manner that is consistent with the duty of good faith and damages may flow when it fails to do so. A Court can also award damages against an employer where the termination was done in a manner that is found to be harsh, malicious, and/or vindictive and which a Court believes to be worthy of punishment. This can include conduct by the employer post-dismissal, such as delaying or failing to make statutory minimum payments, alleging baseless grounds for cause, or interfering with an employee’s ability to receive EI payments.

The facts of your specific case may warrant additional damages over and above your entitlement to reasonable notice for Wrongful Dismissal. The lawyers at Marvin A. Gorodensky Professional Corporation can help to review the circumstances of your dismissal and determine whether you are entitled to any additional damages on account of your employer’s misconduct.

Many of our clients come to us because they have noticed a change in the way they are treated at work. Whereas once they used to be considered valued members of the workplace, now it seems they cannot do anything right. Their performance reviews, once consistently positive, have gone south and they have begun receiving warning letters or performance improvement plans.

These employees are confused and frightened that they will be soon dismissed from employment. However, it may be that your employer is simply trying to force you to quit to reduce its obligation to provide you with severance. These types of situations are very common. The lawyers at Marvin A. Gorodensky Professional Corporation can help guide you through these difficult circumstances and assist in preparing an appropriate response to your employer, which will either enhance your job security or allow you to receive a severance package upon dismissal more easily.

A layoff is often used interchangeably with a termination from work. However, they are very distinct legal concepts. A layoff describes circumstances where there is a temporary shortage of work. An employer has a right to lay off an employee for specific periods as referenced in the Employment Standards Act, 2000, and then recall them back to work. However, at common law a layoff can constitute a Constructive Dismissal and allow an employee to seek damages for Wrongful Dismissal.

A layoff does not automatically constitute a Constructive Dismissal and an employee should not take such a position until they have sought out experienced legal counsel. The lawyers at Marvin A. Gorodensky Professional Corporation can assist employees in determining whether a layoff constitutes a Constructive Dismissal and how to deal with the situation.

Understanding if you have a case for wrongful dismissal involves a thorough review of your situation. At Marvin A. Gorodensky Professional Corporation (MAGPC), our experienced Toronto employment lawyers are here to help you navigate this complex area of law.

Get a Free Half-Hour Consultation with a Toronto Employment Lawyer

To determine if you have been wrongfully dismissed, it’s essential to consult with an employment lawyer who can examine the details of your termination. During our free half-hour consultation, we will:

• Review the circumstances of your dismissal.
• Assess whether the severance pay offered by your employer is fair and meets legal standards.
• Explain your rights and options under Ontario employment law.

Our goal is to provide you with a clear understanding of your situation and the potential for a wrongful dismissal claim. If you decide to proceed, we will work diligently to secure a full severance package to ensure your financial protection during your transition.

Toronto | Downtown Toronto | Midtown Toronto | North York | Etobicoke | East York | York | The Beaches | Leslieville | Scarborough | Mississauga | Brampton | Vaughan | Caledon | Georgetown / Halton Hills | Markham | Richmond Hill | Stouffville | King City | Aurora | Newmarket | Bradford | Oakville | Milton | Burlington | Pickering | Ajax | Whitby | Oshawa | Uxbridge | Hamilton | Guelph | Cambridge | Kitchener-Waterloo | London | Brantford | Sarnia | Windsor | Welland | St. Catharines | Woodstock | Stratford | Chatham-Kent | Leamington | Barrie | Orillia | Kawartha Lakes | Lindsay | Orangeville | Peterborough | Gravenhurst / Muskoka | Huntsville | Parry Sound | Bruce Peninsula | Kingston | Belleville | Cobourg | Port Hope | Brockville | Cornwall | Napanee | Prescott | Renfrew | Sudbury | Thunder Bay | Timmins | North Bay | Elliot Lake | Kenora | Dryden
“`