If you were previously employed and find yourself in a situation where you have been terminated, you may have a right to make a wrongful dismissal claim, depending on the circumstances.
There are various factors to consider.
First, were you part of a union? If so, unfortunately this will preclude you from making a claim as members of unions receive their own benefits under a collective agreement.
If you were not part of a union, we can look further into the circumstances surrounding the employment.
Were you fired for an explicit reason relating to your conduct?
Examples of this would include engaging in harassment, shirking work responsibilities, being late repeatedly, stealing or other forms of criminal conduct.
If the answer is yes, then your employer likely had just cause to fire you and your prospects for taking any legal courses of action are likely not very strong.
Under the Employment Standards Act (ESA), if an employee maintained employment with the same employer for three months or longer, they are entitled to, at a minimum, notice or pay in lieu of notice. Often there are times when employers opt to pay the terminated employee in lieu of notice in order to avoid maintaining an uncomfortable workplace environment. In this case, your employer has seven days to pay your wage from the date you were terminated, or they can wait until your next scheduled pay date. The employer can choose whichever date comes later.
The ESA outlines the minimum statutory requirements for notice and pay in lieu of notice.
For example, if an employee worked between three months and a year, then that person is entitled to one weeks’ notice or one weeks’ pay in lieu of notice.
If an employee worked one to two years, then it is two weeks’ notice or two weeks’ pay in lieu of notice.
Starting at three years employment, the weeks of notice correspond to the years of employment (i.e. three weeks notice is required for three years of employment, four weeks for four years, and so on…)
However, should a terminated employee decide to pursue legal action, the courts have shown that in most circumstances, additional notice should have been required. The courts will look at all the facts surrounding the employee’s case including whether there was an employment contract, how long the employee worked for the employer, the nature of the employee’s job, the employee’s age and his or her prospects at finding a new job in the same field. It is because of the court’s past findings of additional required notice periods that provide compelling reasons for terminated employees to pursue wrongful dismissal claims.
For example, in Ruston v Keddco Mfg. (2011) Ltd., 2019 ONCA 125, the Court of Appel upheld the trial judge’s decision to award the Plaintiff who had been employed with his company for 11 years, a whopping 19 months pay in lieu of notice. This award did, in fact, take into consideration many factors, such as the Plaintiff’s salary, his highest level of education, his advanced age, the seniority of his position, the prospects of finding new employment, his personal caregiving responsibilities that would impact any new employment opportunities and his employer’s failure to provide a letter of recommendation to assist him in finding new employment.
Cases such as this one illustrate that the prescribed notice periods outlined in the ESA are not the final word on the subject and that the courts are willing to modify these periods depending on the context of each case.
If you do, in fact, find yourself terminated, it is best to avoid signing any document provided by your employer that may preclude your right to take legal action. It is always best to speak to a lawyer first in order to know your legal options. Severance may also be payable to a terminated employee depending on the circumstances. This is also an entirely different issue separate from termination pay that any terminated employee should look into closely and is something you should speak to a lawyer about.
If you are confident that you have maintained a clean record over the course of your employment, you just might have a compelling case to make a wrongful dismissal claim. It never hurts to speak to a lawyer about your case! Better safe than sorry!