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About our presenter… Karen McClellan leads the 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 work March 23, 2010 By Karen McClellan Lawyer

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 OR 2.Your are an advocate, service provider or ally that a worker or workers may turn to if fired or laid off from a job work

Disclaimer This is not a substitute for legal advice. If you need legal assistance, call Legal Aid Ontario at and ask to be referred to your community legal clinic. work

Topics covered 1.Events that can result in job loss 2.Your rights when you lose your job 3.How to enforce your rights work

Have I been fired or let go? work

Many events can result in dismissal work 1.Termination letter 2.Verbal dismissal 3.Lay off – no recall 4.Abandonment 5.Benefits cut-off 6.Change in ownership 7.Employer bankruptcy 8.Being forced to quit (constructive dismissal)

Protect yourself 1.Get legal advice about your situation Legal Aid Ontario: Keep copies of everything (keep at home) - Termination letter - 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) work

Termination letter/Verbal dismissal Most common work

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 work No letter + No cause for dismissal = Termination pay

Laid off - no recall work You must choose: (1) Consider it a dismissal OR (2) Wait for a call back

When is a layoff permanent? work 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 work 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 work

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 work

Sick leaves and disability benefits work Employer obligation Employee obligations to accommodate medical conditions, subject to certain conditions to provide information: 1.in a timely manner 2.in compliance with company policy 3.sufficient medical information from doctor, as requested AND 4.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 work

Change in ownership Protect yourself Get legal advice before signing any contract Restructurings common in bad economy work

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 work

Bankruptcy Protect 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 work

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

I’ve been fired, what are my rights? work

I’ve been fired, what are my rights? work 1.Notice or notice pay 2.Severance (if eligible) 3.Unpaid wages 4.Benefits in contract 5.Onus on the employer to prove cause allegations

Your rights when fired or let go work 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 Code OR Common Law Unionized Collective agreement Independent contractors Contract

Your rights when fired or let go work 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 work 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 work

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 work

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. work Employment Standards Act

Common (judge made) law Termination pay A court may award more termination pay than the ESA minimum –Considerations 1.Length of employment 2.Age of worker 3.Type of employment 4.Availability of similar employment –Subject to mitigation court will deduct any new wages earned in the notice period work

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 work

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 work

Discrimination Human Rights only prohibits discrimination on the following grounds: work ▪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 work

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 work

‘For Cause’ allegations Serious misconduct –Theft –Dishonesty –Insubordination –Breach of Employer’s Rules/Company policies –Persistent Absenteeism or Lateness –Sexual Harassment –Intoxication work

‘For Cause’ allegations Minor misconduct –Absenteeism/Lateness –Personality Conflict –Poor performance Persistent inability of employee to perform job duties or meet job requirements work

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 addiction that cannot be accommodated work

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 work

Mitigating factor of long service & loyalty Intent (dishonesty, insubordination, policy breach) Examples of courts’ application of proportionate approach: Sexual harassment Theft/dishonesty work Proportional Approach

How do I enforce my rights? work

How do I enforce my rights? work 1.Collect information 2.Get legal advice 3.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 information Protect yourself 1.Don’t accept an offer or sign a release before getting legal advice 2.Keep your documents Record of Employment Termination letter Settlement offer and release s, letters, medical, performance reviews 3.Start a diary of key conversations and events 4.Start and record mitigation efforts work

Step 2 – Get legal advice 1.For free legal advice, call Legal Aid Ontario at To find a lawyer, call the Law Referral Service at If you have been subjected discrimination, call the Human Rights Legal Support Centre at work

Step 3 – Decide how to enforce 1.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 work

Ministry of Labour work 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 work Length of EmploymentNotice Required Less than 3 monthsNone 3 months but less than 1 year1 week 1 year but less than 3 years2 weeks 3 years but less than 4 years3 weeks 4 years but less than 5 years4 weeks 5 years but less than 6 years5 weeks 6 years but less than 7 years6 weeks 7 years but less than 8 years7 weeks 8 years or more8 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 work Calculating severance pay

Ministry of Labour Reprisals Enforcing Employment Standards Act rights Occupational Health and Safety –Reinstatement a potential remedy work

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…) work

work Court Complex process No investigation Scarce legal aid By Ministry of Attorney General

Court Termination pay based on four factors: 1.Length of service 2.Type of work/job duties 3.Availability of commensurate employment 4.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 work Calculating termination pay

Court work 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 work

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 work

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 work

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 work

Claims under $25K - choosing Ministry of LabourSmall 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 work

Fighting an allegation of cause Get legal advice It is up to the employer to prove cause Look for performance reviews, awards, s etc. that are inconsistent with employer’s allegations Look for failures to investigate work

Questions and discussion work

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