Whether you’ve been “let go”, “discharged”, “dismissed” or “permanently laid off”, the end result is that you’re facing the uncertainty accompanied with losing one’s job. Given that this is a difficult, and often emotional time for employees, many may not recognize their rights and obligations upon termination. In that regard, the following is a list of issues to be aware of:
Is the termination lawful?
While it is the employer’s prerogative to dismiss employees at any time (by either having cause or providing notice/payment in lieu of notice), not all dismissals are lawful. It is, therefore, crucial to determine why you’ve been fired. If any of the following occurs, your dismissal may not be justifiable:
- Dismissal is based on a prohibited ground under the Ontario Human Rights Code (i.e. disability, age, sex, sexual orientation);
- Dismissal follows a complaint of harassment or violence in the workplace;
- Dismissal follows a complaint under the Employment Standards Act, 2000 (“ESA”) (i.e. payment of wages, overtime pay); and
- Dismissal occurs during leaves of absence (i.e. pregnancy leave; emergency leave) or immediately thereafter.
If dismissal is based on any of the above, remember that any legal remedy you have may have a time limitation.
Entitlement to Termination Pay
Your employment may come to an end for “just cause” or “without cause.”
If you’ve been fired for “just cause”, the employer has ended the relationship for a particular reason (i.e. theft, illegal activity, excessive lying, workplace violence or other inappropriate behaviour). In this circumstance, you’re not entitled to any payment as a result of your termination. These terminations are often contentious. It is important to seek legal advice if this is the basis of your termination, as you may have been wrongfully dismissed.
If you’ve been fired “without cause”, the employment relationship has been terminated but not necessarily as a result of your action(s). This is often the case where the employer is downsizing or where the relationship just isn’t a good fit. In this case you have minimum entitlements under the ESA. There is an entitlement to notice (or pay in lieu), which is based on your length of service (one week per year of service), and is currently capped at eight weeks’ compensation. In some circumstances, you may also have a right to statutory severance pay once you’ve worked for more than five years. If your employment contract does not restrict your entitlements to these minimum standards, you may wish to negotiate for a more generous termination package that considers your length of service, your age, the nature of your position, and the availability of comparable alternative employment.
On top of notice or pay in lieu of notice, you are also entitled to benefits for at least your minimum notice period under the ESA, so you should ensure that this is a part of your termination package. If you have received less than what you are entitled to, you may also have been wrongfully dismissed.
Duty to Mitigate
While you have certain entitlements upon termination, you also have obligations, one of which is the duty to mitigate your losses by looking for suitable alternate employment. Your termination package may contemplate this duty but even if it is silent, you should be aware of your legal duty to limit the financial losses associated with your termination by actively seeking out employment opportunities. This duty may also include accepting re-employment with your previous employer, as long as it is reasonable to return to that workplace.
Non-competition and non-solicitation obligations
Your employment relationship may be at an end, but you may still be bound by the contract, particularly if it contains non-compete and non-solicitation clauses.
Non-compete clauses restrict you from taking another job in the same industry for a period of time after leaving your employer. Non-solicitation clauses prevent you from approaching your employer’s customers/clients and employees for a period of time after leaving the employer.
While non-compete clauses have become extremely difficult to legally enforce, non-solicitation clauses remain enforceable, unless they are overly broad and restrictive. Therefore, you ought to ensure that you are not in breach of the employment contract, even if the relationship has come to an end.
Social media comments post-termination
While this is an emotionally-charged time, voicing your frustration with your previous employer on social media may not be in your best interests. In fact, as a recent dismissed employee learned, it may result in a reduction to the settlement award they would have received from their employer. It is important to note that post-termination arrangements are confidential, particularly when dealing with negotiations and settlements.