EMPLOYMENT LINGO: "YOU'RE FIRED" NOW WHAT?

With the downturn in the economy, more and more people are losing their jobs. Many go to work every day fearing it might be the day that they hear the words “You’re fired”. Minds start racing. How will I pay my bills? How will I support my family? Where do I even begin looking for another job?

However, before the panic sets in, it is important to take a step back. Examine the situation, and seek the appropriate legal advice so as to protect your rights as an employee.

Please find below some basic principles of employment law that you should keep in mind in the event of job loss.

JUST CAUSE

The reality is employers have a right to terminate their employees both for and without cause. “Just cause” is a narrowly defined legal concept that describes the situation where an employer terminates an employee for a reason. Examples of such behaviour include dishonesty, disobedience and severe gross misconduct. In these cases, there must be grossly incompetent conduct in order to justify dismissal.

REASONABLE NOTICE

Where no cause exists, the concept of “reasonable notice” governs. Reasonable notice is the amount of advanced warning the employer must give to the employee prior to terminating their employment. This is based on a number of factors including the position occupied by the employee, their length of service, their age, and the availability of similar employment in the market.

PERIOD OF NOTICE & SEVERANCE ENTITLEMENT

The Employment Standards Act (ESA) and the Canada Labour Code (CLC) for Federal employees outline the statutory minimum requirements for termination and severance entitlement. Generally, the notice period is between one to eight weeks, and the employer has a right to provide payment in lieu of notice in the amount the employee would have otherwise earned during the notice period. Where a large number of employees are terminated, employees may be entitled to a longer period of notice because of the greater potential for market saturation. In addition to termination pay, some employees are also entitled to severance pay upon termination. The employer is not required to pay termination or severance under the ESA where the employee has engaged in willful misconduct or negligence in their duties.

WRONGFUL DISMISSAL: UNION VERSUS NON-UNION

Where an employer does not have cause, and dismisses an employee without giving reasonable notice, the termination constitutes wrongful dismissal, and the employee can challenge the decision. The law is enforced differently in the context of unionized employees and non-unionized employees. Unionized employees are governed by the Collective Agreements negotiated between their unions and their employers – whereas non-unionized employees are protected by the ESA, CLC, and common law.

A unionized employee who wishes to contest an employer’s decision to dismiss can do so through the grievance and arbitration process stipulated in the Collective Agreement.

Although non-organized employees can also be dismissed for cause, they do not have the added protection of a Collective Agreement. Ontario provides no statutory protection to challenge whether cause exists. Rather, these employees choose to either sue for wrongful dismissal in court or to seek termination and severance pay under the ESA.

Although there are a number of contractual and statutory protections, nothing can substitute the value of obtaining timely legal advice. If you have questions regarding your employment or termination, contact a lawyer. The role of a lawyer is to provide the tools to help through hard times so job loss does not stop you from having a productive and fulfilling life.