When to Use an Employment Lawyer | Wrongful Dismissal Claims

Should I be Looking for an Employment Lawyer, or use the Ministry of Labour Process?

When an employee’s job is terminated, a common question employment lawyers are asked is: “Should I hire an employment lawyer to help with my dismissal, or get help from the Ministry of Labour?” As always, the answer is “it depends.”

The first issue to consider is whether the employee’s job was terminated “with cause” or “without cause“. Generally, an employee whose job is terminated is owed a financial severance package, unless their termination was a result of serious misconduct that justified an immediate dismissal without prior notice or severance pay compensation.

Another issue to consider is how much the severance package is worth when it is offered by the employer if the employee’s job is terminated without cause. Is it the minimum amounts required by the Employment Standards Act, 2000 (ESA), or the full amounts required by common law reasonable notice?

Statutory Minimums under the Employment Standards Act, 2000

As a bare minimum, the ESA requires employers upon termination of employment to provide employees:

notice of termination (or termination pay) of 1 week per year of service (up to 8 weeks)
continuation of health benefits for 1 week per year of service (up to 8 weeks)
severance pay of 1 week per year of service (up to 26 weeks) ONLY if:
- the employee worked at least 5 years with the employer, and
- the employer’s payroll is over $2.5 million annually

Generally, each year served entitles an employee to a week in wage and benefits paid. However, an employee’s termination entitlements can only be limited to the ESA minimums if they have signed an employment contract that contains a legally valid termination clause providing the employer with permission to limit their severance pay. If not, the employer must provide the employee’s full severance pay entitlements under common law reasonable notice.

Full Termination Entitlements under Common Law

The general rule is that, without an employment contract permitting otherwise, an employee is entitled “reasonable notice” of termination, or termination pay in lieu, under common law. In other words, an employer must either:

provide the employee with sufficient prior “working notice” before the employee’s official last day of work (termination date); or
pay the employee the equivalent value of his or her severance package (severance pay in lieu of working notice of termination).

The amount of common law reasonable notice (or notice pay) is determined based on traditional “Bardal” factors about the employee that employment lawyers (and the courts) rely on:

age (how old was the employee when their employment was terminated without cause?)
length of employment (how many years did the employee work for the employer?)
position (what type of job did the employee work, position and responsibilities, and what were they paid?)
education, skills, training and work experience (what is the employee’s level of skills and qualifications?)
availability of similar employment (economic conditions: how difficult will it be for the employer to find a similar job?)
various other relevant factors (disability, pregnancy etc.)

If you are an employee who received a severance package from your employer, contact Bune Law to have an employment lawyer to review it to determine if it is fair and appropriate for you, and see how we can help.

Challenging a Wrongful Dismissal – Employment Lawyer vs. Ministry of Labour

Where an employer is owed a financial severance package because their employment was terminated without cause, but the severance package offered is less than their legal entitlements, an employee has two options: they may seek assistance of either an employment lawyer, or the Ministry of Labour by filing a claim stating they believe their employer is not complying with Ontario employment law.

Pursuing an ESA Claim with the Ministry of Labour

The employee begins by filing a claim with the Ministry of Labour, who will then appoint an Employment Standards Officer to oversee the case. This option is cost-effective as there no costs involved for the employee to pursue their termination pay and severance pay from their employer, and if the ESA claim is successful, it essentially becomes a binding government order. However, there is an important limitation with this option: an Employment Standards Officer can only force an employer to provide an employee’s minimum entitlements under the ESA. As discussed above, the maximum weeks of termination pay and benefits an employer can be required to provide under the ESA is 8 weeks (assuming the employee has worked with the employer for 8 years). Additionally, if the employee has worked at least 5 years with an employer whose payroll is over $2.5 million annually, they are also entitled to an additional severance payment of 1 week pay for each year of service.

Looking for Help from an Employment Lawyer

The main advantage in seeking services from an employment lawyer is to seek an employee’s full severance pay entitlements under common law reasonable notice, which is typically much more than the minimal standards required by the ESA. The purpose of reasonable notice of termination (or notice pay in lieu) is a court’s estimate of the time that it would likely take an employee to find similar employment. Since the employee did not provide prior notice of termination (which would have allowed the employee time to seek similar employer), the employee must now be paid the full wages and benefits they would have been earned during this time.

Therefore, as long as there are no limitations in an employee’s employment contract removing the right to receive common law reasonable notice, employees will generally find it worthwhile challenging a wrongful dismissal with the help of an employment lawyer to pursue their full notice pay under common law notice pay (particularly employees in senior positions, or who have worked for the employer for many years).

Ontario employment law can be complex, so it is always best to seek the advice of an employment lawyer, particularly given that various other factors can affect the amount of an employee’s termination entitlements, such as an employment contracts or the employer’s conduct during dismissal. With the help of an employment lawyer, an employee can be in a better position to rely on expert advice and analysis to determine their legal rights and options.

Contact Employment Lawyer

If you are an employee or an employer looking for an employment lawyer to help with a termination of employment and severance package, please contact Bune Law today.

If you believe that your employer is not compensating you fairly in your termination package, please call Bune Law to discuss your rights and options. To speak with an experienced employment lawyer, please contact 647-822-5492.

Disclaimer: The content on this website and blog is not legal advice or legal opinion of any kind, and is only general information. It is in no way particular to your individual case and should not be relied upon in any way. The outcome of a legal matter depends on its unique circumstances, and prior successes are not indicative of future results. No portion or use of this website or blog will establish a lawyer-client relationship with the author, this law firm or any related party. Should you require legal advice for your particular situation, please fill out the form below, or call 647-822-5492, to request an initial consultation.