As an employee, your work is often central to your identity. As an employer, you want to do the right thing, while minimizing any legal risk to your organization. You need an employment lawyer who understands both sides.
Individuals often come to our Employment Lawyers in shock, under stress and in poor health. We give them a base on which to move forward. It gives us tremendous satisfaction to help people at a time when they feel they have nowhere else to turn.
We also work with management, HR professionals and in-house counsel to strike the right balance between what is best, over the long term, for an organization and its people.
We understand that all anyone wants is to reach an agreeable outcome that allows them to move on as quickly and as painlessly as possible.
So doesn’t it only make sense to work with a team that understands both points of view?
What is “constructive dismissal”?
- A constructive dismissal occurs when an employer unilaterally makes a substantial change to the essential terms of an employee’s contract of employment, and the employee does not agree to the changes or leaves his or her job. In this case, the employee has not resigned, but has been dismissed and has a right to sue the employer for damages.
- There are two ways an employee can prove constructive dismissal. He or she can either establish that: (a) the employer breached a serious express or implied term of the contract; or (b) that cumulative acts by the employer have made continued employment intolerable.
- Typically, constructive dismissal cases involve changes to the employee’s compensation, work assignments, or place of work. For example a demotion, a substantial reduction in responsibility, a reduction in pay, or intolerable working conditions arising from inappropriate conduct such as discrimination or harassment.
- What constitutes a constructive dismissal is very fact specific. In addition, if an employee sues an employer alleging that he or she has been constructively dismissed and loses, the employee will likely be deemed to have resigned. For this reason, employees are encouraged to seek legal advice before taking any action in a constructive dismissal scenario.
What does fired for “cause” mean?
- When you are fired for “cause”, this means that you are fired for a reason (at least, according to your employer), and is usually tied to having done something wrong or not performing to the expected level. Being fired for cause is to be contrasted with being fired “without cause”, which is when you are fired without having done anything wrong. If your employer fires you for cause, it is helpful to discuss the allegations it made against you with an employment lawyer to determine whether cause actually exists given the facts of your case, and what your options are going forward, whether or not cause is found, including whether you are nevertheless owed statutory notice and severance pay. If you are fired for cause, your employer bears the burden of proving that the allegations it made against you are true. For this reason, you should always keep a copy of all performance evaluations and other employment-related documents in case there comes a time when you have to defend yourself against such allegations.
What do I do if have been harassed at work?
- Most employees and employers based in Ontario will be subject to the requirements of the Occupational Health and Safety Act (the “OHSA”) when it comes to harassment. “Harassment” is defined in the OHSA as “engaging in a course of vexation comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome OR workplace sexual harassment” which has its own definition.
- First steps after being harassed will depend on the nature and severity of the harassment. If the conduct might not rise to the level of harassment, or if it does, is relatively minor in nature – for example, your boss is speaking to you in a way that you are not happy with – consider whether you can speak with the alleged harasser and address the issue between yourselves. This will not always be an option, and if you’re at all uncomfortable proceeding in this manner, don’t.
- Check your workplace’s harassment policy, which employers are required to have. The policy should tell you who to make a harassment complaint to (with an alternate, in case the identified person is the alleged harasser). Generally, it is important to go through the available channels at work to address the situation, unless you can show that there was a real fear of reprisal or mistreatment for making a harassment complaint.
- The employer will likely discuss the allegations with you to try to determine whether your complaint, if proven rises to the level of harassment. If it, the employer will generally be required to conduct an investigation, whether through an internal or external party. If you have concerns about the neutrality of the investigator, raise these with the employer so that your concerns are on record. It’s also important to understand that complete confidentiality may not be possible. The process should be kept confidential and shouldn’t be discussed with others, but your identity may have to be revealed to the respondent so that they can answer the allegations fully. Once the investigation is complete, the employer will receive a report with findings and recommendations. The employer doesn’t have to share the full report with the complainant and the respondent, but they do have to share the findings, and the corrective measures that they choose to implement. Where harassment is found to have happened, corrective measures can run the gamut from harassment or management training to termination of the alleged harasser.
- It sometimes happens that an employee makes a harassment complaint and it’s brushed off by the employer. If this happens, speak to a lawyer about your rights and potential next steps. Sometimes a letter from a lawyer will be enough to cause the employer to take their obligations seriously and conduct an investigation. Sometimes you may have to do something more, like file a complaint with the appropriate board or tribunal for breaches of the employer’s obligations. A lawyer can also be helpful through the process, just in terms of guidance, and can support you through the investigation phase if you feel that would be helpful.
What should be included in a severance package?
Normally a severance package will provide for compensation equal to the value of your total lost remuneration including salary, incentives, perks such as memberships or car allowances, group benefits, pension growth and lost equity during a reasonable notice period. The package is sometimes subject to credit back to the employer for other employment income you might earn during the notice period.
Termination clauses in employment contracts and severance packages must meet at least the minimum requirements of the Employment Standards Act or of the Canada Labour Code, whichever is applicable. But that is usually just the beginning.
There are generally two types of severance packages, namely (1) salary continuance that comes to an end or is adjusted if other employment is found or (2) lump sum arrangements that are not affected by other income. Typically, the former will cover the applicable notice period longer and more generously than the latter.
The length of the reasonable notice period covered by your severance package will depend upon a number of factors including:
- Whether there is a legally enforceable employment agreement that spells out exactly what you are entitled to, in which case the terms of the agreement will apply;
- If there is no valid employment agreement, the common law will apply;
- The common law is judge-made law– the judge will determine the length of the notice period applicable to you taking into consideration all relevant factors, the most important being your age, length of service and the level of your position;
- If you were recruited away from other secure employment at the time of your hire and, especially if your service with the most recent employer has been short, you may well be entitled to enhanced notice or other compensation.
At common law, you will normally be protected against all losses of every kind during the reasonable notice period including, for example, the lost value of disability benefits for the full period of any disability if you become seriously ill or injured during the notice period, assuming that you have not already settled your severance package. Lost bonuses and other forms of incentive and lost equity in the form of shares, options, and other forms of equity may also be covered, depending in part on the language of any relevant equity or bonus plans.
It is a mistake however to take the language of your employment agreement or equity and bonus plans at face value. Their terms may not be legally enforceable depending upon all of the circumstances. For example, the courts will often award compensation for lost bonus income regardless of the language of the bonus plan if bonus has been a routine part of your total compensation while employed. You should obtain legal advice about the enforceability of any of these documents and, generally, on the nature and extent of the severance package that should apply in your particular circumstances.
If you are ill when your employment is terminated, you may have a variety of other legal claims that you can advance. The same is true if your termination was in whole or in part tainted by discriminatory treatment that could amount to a breach of applicable human rights legislation. If these circumstances apply to you, you should be sure to seek advice and fully describe your situation to your lawyer.
Severance packages are frequently a matter of negotiation both as to length and content. Employers will design their offers recognizing that they might be negotiated and often do not present their best and final offer in their termination letters.
Once an agreement is reached, it is usual to see additional provisions including ones like these:
- Settlement of any claims you may have to earned bonus or other incentives up to the date of termination in addition to your notice period entitlements;
- Compensation for the loss of a salary increase until the end of the notice period;
- An outplacement counselling program to assist you in looking for other work, paid for by the employer;
- A commitment by the employer to provide written and verbal references on mutually acceptable terms;
- A commitment by each party not to make disparaging comments about the other;
- A release of all claims you could make in exchange for the severance package;
- A commitment to hold the terms and conditions of the settlement and the employer’s confidential information in strict confidence;
- Repetition of any contractual non-compete or other post-employment obligations you may have and a commitment that you will respect these; and
- A contribution to or sometimes a full reimbursement of the legal expenses you have incurred to negotiate a fair severance package.
As you can see, there is much more to the negotiation of a fair severance package than a notice period calculator! Be sure to get advice from an experienced lawyer on your situation.
Does my employer have to provide a reason for termination?
Common Reasons for Dismissal
- Employers can lawfully end employment relationships for a myriad of business reasons: because of a restructuring within the organization intended to maximize efficiencies or to reduce costs; due to an outsourcing of some aspect of production; or as a result of the sale or wind-up of a company. Employers may also decide to lawfully terminate an employee for reasons that are more specific to the particular employee, such as the incompatibility of the employee’s skill set with the evolving demands of the position, or declining work performance and attitude that is not health-related.
Without Cause Terminations – No Reason Required
- In the non-unionized sector, most terminations of employment involve employees being dismissed without cause, upon the employer providing notice of termination and/or appropriate compensation in lieu of notice. In such circumstances, there is no obligation under Ontario’s Employment Standards Act or under the common law for the employer to provide the employee with the reason or reasons underlying the dismissal.
- Notwithstanding that there may be no legal obligation to provide a reason for termination when the dismissal is without cause, it may be prudent for an employer to disclose the actual reason for dismissal (i.e. due to restructuring) in circumstances where there is a concern that the employee may falsely assume that the dismissal was related to a factor proscribed by Ontario’s Human Rights Code, such as race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. In situations where there is a possibility that an allegation of discrimination will be made, it may be advisable for an employer to explain to the employee the real reason for termination to alleviate the risk of a misunderstanding leading to the filing of a human rights application.
With Cause Terminations – Reason must be provided and proved
- In contrast to without cause dismissals, when an employer decides to terminate an employee for cause without notice or compensation then reasons for termination must be given. The employer must prove it had lawful cause to dismiss the employee, by substantiating its allegations with evidence.
Canada Labour Code – Reason must be given upon request and proved in response to an unjust dismissal complaint
- Federally regulated employers with non-unionized workforces, such as banks, are legislatively required under section 241(1) of the Canada Labour Code to provide a written statement giving the reasons for dismissal within 15 days of receiving a written request from the dismissed employee. Should the employee file an unjust dismissal complaint under the Canada Labour Code, the onus will be on the employer to prove that the reasons given for dismissal are substantiated and justified cause for the employee’s dismissal.
Nelligan O’Brien Payne LLP recently received the Top Listed Award from The Best Lawyers in Canada, 2017 edition, in Labour and Employment Law.
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Learn more about employment law from our lawyers
Our employment lawyers are committed to contributing to the legal profession and to the community at large. We frequently speak at seminars and workshops, and regularly publish articles, blog posts and videos on a wide range of subjects related to employment law. Please do not hesitate to contact us if you are interested in learning more about the seminars and workshops we offer. You can also explore our interesting and informative publications.
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