Employment Law & Wrongful Dismissal
Professional legal representation for employees facing wrongful dismissal, workplace discrimination, and employment contract disputes. We fight for your rights on a contingency fee basis - no upfront costs to you.
General Info
The Reality of Employment Dismissals
We all agree that life can be tough and it could very much happen to anyone, when one morning you walk into your place of work and the next thing you know is that you have been dismissed by your employer. Every year, thousands of employees are dismissed in Ontario and many of these claims go unchallenged as many people do not know their rights.
At times, employers dismiss their employees and give unreasonable and stringent timelines for executing full and final release documents and accepting a severance package, without even giving them the opportunity to seek independent legal advice. It is imperative that you speak to a lawyer prior to signing any kind of documentation.
Types of Dismissal
There are different ways in which one can be dismissed or fired by his or her employer:
- Dismissal Without Cause: Employer dismisses you without providing a reason
- Dismissal With Cause: Dismissed for misconduct, incompetence or neglect of duty
- Constructive Dismissal: Employer creates conditions forcing you to resign
Complex Situations Require Legal Specialization
There are numerous situations that can arise and each situation is unique and has its own merits. For example, you may have been working as an Executive for an International Corporation for many years and a competitor may approach you and solicit you, offer you a higher and better position and then the next thing you know is that you have been fired and you no longer have a job. In such situations, you can make a claim for notice period from the day you started your previous job, the one you were solicited from.
Disability-Related Dismissals
Another example of being wrongfully terminated is where your employer is aware of you suffering from a disability and despite having reviewed the medical opinion of your treating physician, your supervisor or boss still forces you to return to work and if you are unable to do so, they fire you. Not only do they dismiss you but they also terminate your extended health care benefits.
If your employer fails to keep your extended health care benefits open and subsequently you become disabled, then it is likely that the court may hold the employer responsible for your long-term disability payments.
Contingency Fee Representation
At UL Lawyers Professional Corporation, if you have been dismissed by your employer, we will work for you on a contingency fees basis, which means there are no upfront retainer fees that have to be deposited with us. We will initially pay for all your disbursements and any court costs. Upon settlement or judgment, fees will be calculated on the amount of recovery and not on disbursements or costs recovered in accordance with the Solicitors Act R.S.O. 1990, CHAPTER S.15.
Dismissal Without Cause
In Ontario, speaking on general basis, employers have the right to terminate non-unionized employees on a without cause basis where they are not required to provide extensive reasons in writing for dismissing the employee. If a business is going downhill and the business cannot continue to afford paying their employees, the business has the right to terminate employees without justifying the reasons, provided a proper working notice or notice in the form of compensation is given to employees in accordance with the Employment Standards Act.
Employment Standards Act (ESA)
The statute requires that employees be given compensation or advance notice of the dismissal. The minimum length of notice payable for individual dismissals is contingent upon an employee's length of service.
Common Law Entitlement
The general rule of thumb is 1 month per year of service. Common Law means law made by judges in past cases.
Mitigation of Damages
You have an obligation to mitigate your damages by actively seeking new employment. You cannot just sit at home and expect to be paid.
ESA Notice Periods by Service Length
Service Periods
- 3 Months but less than 1 year: 1 week pay
- 1 year but less than 3 years: 2 weeks' pay
- 3 years but less than 4 years: 3 weeks' pay
- 4 years but less than 5 years: 4 weeks' pay
Extended Service
- 5 years but less than 6 years: 5 weeks' pay
- 6 years but less than 7 years: 6 weeks' pay
- 7 years but less than 8 years: 7 weeks' pay
- 8 years or more: 8 weeks' pay
Exceptions Under ESA
There are certain exceptions under the Employment Standards Act, where notice is not required to be paid to a terminated employee:
- An employee who is temporarily laid-off, as defined in the Employment Standards Act
- An employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty
- A contract of employment that is or has become impossible of performance or is frustrated by a fortuitous or unforeseeable event
Severance Pay Entitlement
Along with a working notice or compensation for notice period, pursuant to the Employment Standards Act, you may be entitled to 'severance pay' if:
- You were employed for five years or more, AND
- The severance occurred due to permanent discontinuance affecting 50+ employees within six months, OR
- The employer has a payroll of $2.5 million or more
Important: Review Your Employment Contract
Please note that the 1 month notice per year includes your notice and severance pay. Although, you need to review your employment contract that you may have executed prior to starting out your employment to ensure that you did not opt out of your common law entitlements. Employers generally have employees opting out of common law entitlement at the time of signing an employment contract but at no time can an employer force you to sign away your minimum ESA entitlements.
Dismissal With Cause or Termination for Just Cause
Burden of Proof on Employer
Employers at times take the position that an employee who has been dismissed for just cause is not entitled to any working notice or notice of dismissal or any kind of severance. However, the evidentiary burden of proving that the employee was guilty of some sort of serious misconduct or incompetence is upon the employer.
In the case of R. v. Arthurs, Ex p. Port Arthur Shipbuilding Co., 1967 CanLII 30 (ONCA), the Court of Appeal held that an employer may terminate employment for cause if the employee is "guilty of serious misconduct, habitual neglect of duty, incompetence or conduct incompatible with his duties, or prejudicial to the employer's business, or if he has been guilty of wilful disobedience to the employer's orders in the matter of substance."
Prior Warnings
Employer must show warnings were given prior to dismissal
Opportunity to Improve
Employer made genuine effort to give employee chance to improve
Work Incompatibility
Employee's work ethic incompatible with assigned responsibilities
Business Harm
Misconduct caused significant loss or harm to the business
What the Employer Must Prove
The employer has to show that warnings were given prior to the dismissal and that the employer made a genuine effort to give the employee a chance to improve or rectify his or her mistakes. The employer must further corroborate that:
- The employee's work ethic is incompatible with the responsibilities assigned
- The employee is incompetent despite being given the opportunity to retrain
- The conduct of the employee is prejudicial to the employer's business
- The misconduct actually happened and caused significant loss or harm
Feeling Humiliated or Prejudiced?
If you have been a victim of just cause where you are of the opinion that you have been prejudiced by your employer's conduct and feel humiliated, then you can rely on the lawyers at our firm to assist you and advocate passionately for your rights. We can guide you right and lay out your proper options for you.
Constructive Dismissal
Recognizing Constructive Dismissal
Are you in a situation where your employer is attempting to get rid of you but is hesitating from being straightforward and advising you that he or she wants you to leave and is perhaps creating a situation for you to resign on your own?
Common Signs of Constructive Dismissal
You may be experiencing constructive dismissal if:
- Your employer has unilaterally changed the essential terms of your contract
- You have been demoted without justification
- Your main tasks at your place of employment have been changed suddenly
- You have been asked to relocate to a significantly further office
- Your employer is creating a hostile work environment
Legal Definition
It is an implied term of all employment contracts that an employer cannot make changes at his or her own discretion to change an employee's salary or duties etc. and an attempt to do so would repudiate the employment contract.
Your Rights
Where an employer unilaterally changes the pith and substance of an employment contract, the employee can consider the contract to have come to an end and commence an action for a constructive dismissal.
Burden of Proof
The burden of proof is upon the employee to establish the changes were of a fundamental nature and that these changes significantly change the essence of the contract, so ensure you have all your documentation ready to prove that the essential terms of the employment contract have actually changed.
Why Employers Use This Tactic
If your employer is creating such situations, they are most likely attempting to dismiss you but will not fire you as they are attempting to avoid paying any notice or severance. At common law, situations described above are referred to as a 'constructive dismissal'.
Discrimination at Workplace on Basis of Disability or Injury
Recognizing Workplace Discrimination
Are you of the opinion that your employer is discriminating against you on the basis of your disability? These situations require immediate legal attention.
Common Forms of Disability Discrimination
You may be experiencing discrimination if:
- You were injured and required surgery, but forced back to work despite your surgeon's advice
- You informed your employer of your medical disability and provided documentation, yet they failed to accommodate you
- You were dismissed on the basis of your disability
- Your employer is forcing you to do work they know you cannot perform because of your disability
- Your employer is using your disability-related limitations as an excuse to fire you
Medical Documentation
Proper medical documentation is crucial in disability discrimination cases. Keep all records from treating physicians.
Duty to Accommodate
Employers have a legal duty to accommodate disabilities to the point of undue hardship.
Legal Protection
Both human rights legislation and employment law protect against disability discrimination.
Immediate Action Required
If your answers are yes to any of the above, then we highly recommend you contact our office immediately. Disability discrimination cases are time-sensitive and require prompt legal intervention.
Solicited, Hired and Then Fired
The Scenario
You have a good steady job for several years and one day, out of nowhere, a recruiter or third party reaches out to you, offering you a better job with better pay and you say to yourself, "oh wow! Let's do this…"
You start the new job and within some time, your new employer decides that they do not like you or do not need you and tell you that you have been dismissed within the probationary period and therefore no notice is owing to you.
Stable Employment
You had a good, steady job for several years
External Recruitment
Recruiter or employer approaches you with better offer
Quick Dismissal
New employer dismisses you within probationary period
Legal Rights
You may be entitled to notice from your original start date
Your Employer May Be Wrong!
Well if you did not execute a contract in writing then your employer is wrong! They most likely do owe you notice and it could very much be that you are supposed to be given notice from the time you commenced your job that your new employer solicited you from.
Special Considerations for Solicited Employees
When you are actively recruited from another position, courts may consider your entire period of employment, including your previous role, when calculating notice periods. This is particularly true when:
- You left a secure, long-term position
- You were actively recruited or headhunted
- No written contract was executed limiting your rights
- The dismissal occurs shortly after starting
Independent Legal Advice for Employment Contracts
New Employment Contracts
Have you started a new job and the contract your new employer has provided you with is confusing and you do not understand it? The lawyers at our firm can assist you in such a scenario and give you legal advice, your various options and outcomes of you executing your employment contract.
Contract Changes
Have you been asked to sign a new contract with your existing employer and you feel hesitant and not sure if you want to sign? We can review the changes and explain how they may affect your rights.
Contract Review
Comprehensive review of employment terms, conditions, and legal implications.
Rights Protection
Ensuring you don't inadvertently sign away important legal rights and protections.
Negotiation Support
Advice on potential improvements or modifications to contract terms.
Fee Structure for Independent Legal Advice
Please be advised that for independent legal advice (ILA) with respect to any and all employment matters, an hourly fee is applicable. For Employment Independent Legal Advice matters, our firm does not operate on a contingency fees basis.
Why Independent Legal Advice Matters
Employment contracts often contain clauses that can significantly impact your rights, including:
- Termination notice periods
- Non-compete and non-solicitation clauses
- Confidentiality obligations
- Intellectual property assignments
- Benefit and compensation structures
Quick Consultation
Get professional legal advice for employment law