What Should I do if I’m Wrongfully Dismissed and Lose My Job?
Most employees are unsure of what to do when their company terminates their employment. The prospect of not having a job or stable income is traumatic enough as it is. Yet, to complicate matters, most employers force employees to quickly accept an offer of a small financial payment (e.g., “two weeks of termination pay”) in exchange for signing a termination letter and legal release forfeiting their legal to speak up or challenge a wrongful termination. Of course, the most important first step any employee can take after they lose their job is to consult with an experienced employment lawyer in Ontario to understand and review their rights and options.
As a wrongful dismissal lawyer, there are many topics we cover to help those employees find the best available option:
- do you have an employment contract? If so, what does it say about your rights upon termination (employment lawyers call this a “termination clause“);
- was your employment terminated with cause or without cause?
- what were the circumstances leading up to your termination of employment? Were you recently on a maternity leave? Did you recently complain about workplace harassment or discrimination? Was the employer’s decision to terminate your employment the culmination of a performance improvement plan?
- how long were you working for the same employer?
- how old are you?
- what is the nature of your employment, in terms of compensation, duties and responsibilities?
- how likely is it that you will re-employ in a similar job based on existing economic circumstances and how soon? That is, what are your job prospects?
Is there a “Maximum” Notice Period in a Severance Package?
When representing clients in court, a wrongful dismissal lawyer will evaluate each employee’s unique circumstances and compare them with previous similar cases to determine exactly how much severance pay the court should award. This means that ultimately, the courts have the final say in a wrongful dismissal dispute. However, generally speaking, case law has established an upper limit of twenty-four (24) months’ notice of termination (or pay in lieu of notice) for long-service, non-unionized employees (as long as their severance pay entitlement is not otherwise limited by an enforceable employment contract). That said, the courts have recently left open the possibility of awarding more significant notice periods if an employee can establish they “exceptional circumstances” to justify a higher wrongful dismissal award.
For instance, in a recent case called Currie v. Nylene Canada Inc., 2022 ONCA 209, the Ontario Court of Appeal’s upheld a decision from the Ontario Superior Court, which elaborated on the concept of “exceptional circumstances” that justify a wrongful dismissal award higher than 24 months. Moving forward, this court decision will serve as a precedent to guide employment lawyers and other courts in determining whether a particular employee is entitled to significant reasonable notice damages.
In this case, the Ontario Court of Appeal confirmed the lower court’s decision to award an employee 26 months of pay in lieu of notice (severance pay). In doing so, the court agreed that the following circumstances may constitute “exceptional circumstances” justifying a reasonable notice period above 24 months:
- the employee left high school to start work at 18 years of age and worked there for her entire career, ultimately rising to become the Chief Operator reporting to the Shift Leader;
- after working for the employer for 40 years, her employment was terminated “near the end of her career,” when she was 58 years old;
- the employee had highly specialized skills making it very difficult for her to find alternative suitable employment. Also, at the time of her termination, she had limited computer skills. Despite making genuine efforts to improve her basic computer skills to improve her chances of finding another job to mitigate her damages, the trial judge was of the view that she would not succeed in securing alternative employment;
- the employment landscape had evolved significantly since the employee had last entered the workforce in 1979 and, because her experience was limited to working only for this one company in the manufacturing industry, her skills were not easily transferable; and,
- given her older age, limited education and skills set, the court found her wrongful dismissal “was equivalent to a forced retirement.”
As this case demonstrates, one of the most important factors the courts will always consider is an employee’s length of service, especially when have they dedicated over 30 years working only for the same employer. However, simply having many years of service does not automatically entitle a terminated employee to severance pay in excess of the 24-month “cap” in wrongful dismissal damages. Rather, with the guidance of an experienced wrongful dismissal lawyer, the courts will consider the entire context, and will be more likely to award greater than 24 months when the employee is older and does not have sufficient skills or diverse work experience to succeed in the current economy or job market.
While the “exceptional circumstances” sets a high standard for the courts to award a terminated employee more than 24 months is self-explanatory, employers should be mindful that their obligations will always be tailored to match each employee’s specific circumstances. Among other things, employers terminating an employee of many years of service should carefully consider whether there are “exceptional circumstances” that can make it harder for an employee to find a comparable job and, if so, provide a severance package that is fair in the circumstances.
Contact Employment Lawyer Today
If you are an employer dealing with a wrongful dismissal claim brought by a former employ you terminated, or if you are an employee who would like to understand your legal rights and ability to claim for wrongful dismissal or negotiate your employer’s severance package, contact our employment law firm to speak with a top wrongful dismissal lawyer for help. Contact our experienced employment lawyer by phone 647-822-5492 or fill out the contact form to the side. We would be happy to assist in your employment law matter as quickly as possible.
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