Lecker & Associates, Toronto Employment and Disability Lawyers have been providing services to wrongfully terminated employees for over 25 years. As an advocate for employees we specialize in cases involving; Wrongful Dismissal, Constructive Dismissal, Employment Law in Ontario, Employment Contracts, Sexual Harassment in the workplace, and other work related items.
Considered one of the most experienced employment law practices, our approach to all specific cases, while professional, is compassionate and caring. We truly understand the stress and strains that are involved with seeking legal recourse and work with you in minimizing the impact of wrongful dismissal, constructive dismissal, job loss and other employment issues.
Need Practical Help?
At Lecker & Associates our first step is to thoroughly understand your case and provide you with options in a clear manner that allows you to make the right decisions. In other words we use everyday language that is not confusing. By understanding how traumatic any legal undertaking can be for former employees who have undergone a stressful termination we tailor our approach through a methodology that quickly assesses your rights and current legal status. At our employment law firm we consider your requirements a priority.
What You Should Know:
Can terminated employees choose to take their employer to court for wrongful dismissal rather than filing a claim with the Ministry of Labour? What you should know and be fully aware of the following: an employee can choose to sue an employer in a court of law for wrongful dismissal. However, an employee can’t sue an employer for wrongful dismissal and at the same time have a claim for termination or severance pay investigated by the ministry for the same termination or severance. The employee must choose one procedure or the other.
An employee who is terminated without cause due to restructuring, downsizing, lay-off or economic reasons, is regarded as a true innocent party before the Courts in Canada. The real legal issue for such individuals is not “am I entitled to compensation from my employer” but how much am I entitled to.
A 1997 Supreme Court of Canada decision, Wallace v. United Grain Growers Ltd.,  3 S.C.R. 701, 1997 CanLII 332 (which is considered to be one of the most influential employment law decisions to date) established the standard requiring employers to treat employees with good faith and fair dealing at the time of their termination.
As a result of this case, a court will now consider an employer’s insensitive conduct and dealings with the employee as a factor when awarding damages to a wrongfully dismissed employee. Some examples of insensitive / bad faith conduct at the time of termination include:
- Not being honest, reasonable or straightforward with the employee;
- Misleading the employee;
- Humiliating or embarrassing the employee;
- Making unfounded allegations or negative public statements about the employee;
- Falsely assuring the employee continued job security;
- Refusing to produce a letter of reference or record of employment;
- Not returning any personal property left at the office;
- Firing the employee immediately upon returning from a disability leave;
- Withholding money that is owed to the employee at the time of termination.
Changes in employment that frequently give rise to constructive dismissal claims are outlined below:
Reduction in Remuneration / Pay
- The employer is refusing to recognize the “agreement” it made with the employee
- Courts review all changes to remuneration, benefits, bonuses, commissions and profit-sharing to determine whether an employee will likely earn less overall income in the future
- Unless the employer can prove the employee consented to the change, it is generally considered constructive dismissal
- Some major demotions can be considered as constructive dismissal and it is suggested that you should seek legal counsel if you fell this may be the case;
- Courts look at such factors as the substance of the new position, not just the job title; the range of salaries of the previous and new position as well as the organization’s general career path and where the position fits within its plan;
- Change in the responsibilities at work;
- If a person is hired to fill a specific job function, they usually cannot be forced to assume another one;
- Geographic transfer;
- If an organization has stated that employees may have to relocate, or it is obvious from the nature of the position, constructive dismissal would not be found in this matter
Employment Law in Ontario
How do the courts dealing in employment law decide how much severance you will get or your entitlement to reasonable notice of your termination?
The most pivotal factors and items that a court will look at when using this approach:
- The type of employment and position held. If you perform more managerial or supervisory duties, you are entitled to more severance pay. If your job or position is highly specialized and it is difficult to replace you, you will receive more severance as well.
- The length of your employment with the employer. If you have been with the company for a longer period, you are entitled to more severance. However, the length itself is not always definitive. Some short-term employees can be entitled to substantial severance packages depending on the other three factors of the test or if you were induced to leave a secure job.
- Your age at the time of termination of your employment. The courts generally take the view that older employees will have a greater difficulty finding a job similar to the one they were just fired from. As a result, courts usually award older employees more severance.
- The availability of similar employment that matches your experience, training and qualifications. Here, a court will consider all of the circumstances that are either preventing or helping you to find another, similar job.
When it comes to assessing how much money you’re going to get once you’ve been terminated, you should consult with an employment lawyer before agreeing to anything that may affect your legal entitlements.
Legal Update: As a result of recent changes to the regulations under the Employment Standards Act, 2000, employers in Ontario are now required to pay both statutory notice and severance to employees whose employment has been terminated due to frustration of contract (employment) arising from illness or injury.