When you’re just getting your foot in the door, the hardest thing to contemplate is being fired.
Knowing your rights and obligations during an otherwise uncertain and difficult time will help when transitioning from one job to another.
The following is a snapshot of some of the issues to be aware of when you’ve lost your job:
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. The following restrictions apply to Ontario only. Provincial laws vary:
- 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)
- Dismissal occurs during leaves of absence (i.e. pregnancy leave; emergency leave) or immediately thereafter
If your dismissal is based on any of the above, remember that any legal remedy you have may have a time limitation, so it is best that you consult with legal counsel or start the appropriate process as soon as possible.
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 Ontario Employment Standards Act, 2000 (“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 address 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.
Transitioning from one job to the next is a difficult task, especially for those in Generation Y as it may have been quite difficult to land the job with a previous employer but that should not dissuade you from assessing your termination and ensuring that it accords with the applicable laws in Ontario.
Have you ever been let go? Share your advice in the comments!
Disclaimer: This article is for general discussion purposes only and should not be regarded as legal advice.