Most employment dismissals are without cause. This means that the employer does not have specific grounds for termination, but nevertheless wishes to terminate the employment relationship. Many potential clients are of the mistaken assumption that they cannot lose their job unless they intentionally do something wrong, but this is not accurate. For instance, many employers will terminate an employee due to organizational restructuring or work performance issues.
There are only a few exceptions to the broad powers of an employer to terminate an employee without cause, for instance where the termination is made for discriminatory reasons that are protected grounds under the Ontario Human Rights Code, or a reprisal against an employee who insisted upon the employer’s compliance with the Occupational Health and Safety Act.
Although it may be unnerving to learn that you can essentially lose your job for no good reason, it does not mean that you are without options. Most employees who are terminated without cause have legal recourse.
When we are advising clients about their rights upon termination without cause, there are two sources we look to. First is the Employment Standards Act (“ESA”), a mandatory legislation applying to most workplaces in Ontario. The ESA sets out the mandatory minimum entitlements upon termination without cause, but is often limited to one week per year of service, to a maximum of eight. Under the ESA, an employee may also qualify for severance, which is an additional payment owing to the employee. Certain criteria must be met to qualify for severance, which may be a topic for a future blog post.
There is also common law notice, which employees are entitled to unless they have waived those rights in an employment contract. Common law notice is normally more generous than the ESA. The calculation of common law notice is more complex than the ESA. In the seminal case of Bardal v. Globe & Mail Ltd., the Court set out a list of factors to be taken into account when calculating reasonable notice, which include the following:
- Length of service;
- Character of employment;
- Age; and
- Availability of similar employment.
There are other considerations which may impact the calculation of common law notice. For instance, an employee who is terminated without cause has an obligation to mitigate their damages by seeking out comparable replacement work. If the employee successfully obtains a new comparable job, then the earnings from the new job may reduce the entitlements from the job that was terminated. If an employee fails to take adequate steps to look for a new job, then the Court has the power to reduce the employee’s entitlements as if they had looked for a new job, as they were required to do, and that they were successful in obtaining a new job, even though no new job is obtained.
In particular circumstances, an employee terminated without cause may also be entitled to additional damages including moral, punitive and aggravated damages, depending on the pre- and post-termination conduct of the employer, and the circumstances of the employment and the termination.
There is also the issue of ancillary remuneration, including pension, benefits, and insurance coverages upon termination, which the employee may have a right to have continued for a period of time upon termination without cause.
Given the complexity of the law, and the differing circumstances of employment, it is important for employees who have been terminated without cause to confer with an experienced employment lawyer. Such a lawyer will be able to meet with the client to review their particular situation and provide them with specific advice. You should expect that the lawyer will charge you for such a consultation; however, given the amount of money that could be at stake, it is normally money well spent to inform yourself of your rights.
At Northern Law LLP, we regularly assist employees in termination matters involving termination without cause. Although past results are not necessarily indicative of future results and the amount recovered and other litigation outcomes vary according to the facts in individual cases, many of our clients have received a payout from their employer which greatly exceeds the original offer made to the employee. Often the employer will also reimburse the employee for some or all of their legal expenses in enforcing their rights, given that the employer unilaterally undertook the termination, and in many cases, provided the employee with an inadequate initial offer.
At Northern Law LLP, the focus of our employment law services is in assisting employees and enforcing their rights against employers upon termination. We are not intimidated by large employers – we have advanced cases against many of the largest employers in Canada. If you have been terminated without cause, call us today at 705-222-0111 or send an email to firstname.lastname@example.org.