Kevin Marshall and Ahmed Tariq
October 28, 2021
Your employer probably has the right to terminate your employment - but, if it does, you have rights, too. Here's 9 of them:
- You have the right to be told clearly whether or not you’ve been fired. Communication of termination can take many forms. Receiving a termination letter is the clearest way to know you’ve been fired. But other employer actions (or omissions) effectively communicate that you’ve been fired. These include being told you were fired (often by phone) with few or no additional details, having your wages cut by 15% or more, or your hours significantly reduced, or not being called back after months of “temporary lay-off”. These can also involve prolonged harassment, health and safety violations, or a toxic work environment, which caused you to quit your job. If so, you have been effectively fired (“constructive dismissal”) and you are entitled to the same rights as though you were fired in writing.
- You have the right to know if your employer is terminating you “for cause” and the ground(s), or reasons, for the termination. If your employer is not alleging “cause”, read on. If they are, and they are correct, you likely will only be entitled to back wages and vacation pay. But to be correct, your employer must have evidence you did something really bad. For example, stealing from your employer, sexually assaulting a co-worker, or punching a manager unprovoked. Your previous disciplinary history and the employer code of conduct are also relevant.
- You have the right to unconditionally receive your back wages, vacation pay and Record of Employment. Therefore, never sign (or negotiate) anything in exchange for receiving what you are owed.
- You have the right to receive the minimum amount that the law requires. This amount is calculated based on how long you worked and usually is 0 - 8 weeks of base pay (“termination pay”). If you worked at least 5 years for a larger employer, you might also be entitled to some additional amount, called “severance pay”. The only exception to you receiving termination pay, and perhaps severance pay, is if your employer alleges “willful misconduct, disobedience or neglect of duty” and they are correct.
- You usually also have the right to receive a severance package often conditional on signing a Release. This severance package is usually 0 - 24 months of your entire pay, less termination pay and severance pay received from your former employer and/or wages earned from your new employer(s) during this period. The amount you will receive is based on several key factors, including your age, how long you worked, level of responsibility in the company, and your ability to find a new job.
- You have the right to request an extension before signing anything. You don't have to decide your options by the first deadline provided by your former employer - you can ask for a reasonable extension to consider what to do.
- You have the right to negotiate a better severance package than what you were originally offered. There is often room to negotiate for higher amounts than what you were offered, especially since you will normally be asked to sign a Release in exchange for receiving a severance package. Remember to ask for extended benefits, career or emotional counselling, internal job opportunities, etc.
- If negotiations fail, you have the right to sue your former employer within 2 YEARS for all aspects of your claim. This often includes constructive dismissal claims and can include discrimination following an injury, illness, pregnancy, etc., or health and safety issues, and/or on-going mistreatment before you were fired. Expect a lot of resistance from your former employer. Remember: The legal deadline (“limitation period”) is always two years from the date of termination, discrimination, etc.
- You have the right to get on with your life, find a better job, and apply for Employment Insurance (EI) benefits. Your former employer has an obligation to be truthful about your job performance with your prospective employers. Conversely, you have a duty to minimize the impact of being fired by looking for another job (“mitigating your damages”). Be sure to keep good records of your job search. If you are hired, you may no longer have a viable claim against your former employer - but a new opportunity and a fresh start awaits!
Disclaimer: This blogpost is not to be construed as legal advice. It is non-exhaustive and applies only for claims in Ontario. Each case is unique. Several factors must be considered to properly analyze each aspect of your claim. Reach out to an employment lawyer to review your specific situation and options.
