Losing one’s employment is almost always an emotional event. Whether the termination is expected or without warning, the employee often struggles with a sense of unfairness or betrayal as well as feelings of helplessness and a fear about the future. Especially because it is usually a very emotional and confusing time, it is important to seek legal advice to gain some clarity and perspective, to learn about one’s rights and perhaps even to re-affirm one’s self-worth, through the principles of law.
An experienced lawyer will tailor the initial interview according to the needs of the individual. Some individuals are calm and sophisticated and have sent the lawyer a copy of the proposed package or a written summary of events surrounding the termination, for review. These individuals immediately focus on issues which are important to them and are anxious to define their goals and expectations. The lawyer will engage these issues and goals, while continuing to seek out crucial information. Some individuals are distraught and harbour a strong sense of injustice. These individuals will provide their narrative, with a focus on the unfairness they perceive and their hurt feelings. The lawyer will acknowledge their hurt, while canvassing legal issues which emerge from the narrative and seeking to identify what the person’s goals might be. In every case, the conscientious lawyer allows the individual to tell his or her story, to acknowledge the emotional aspect of the termination event, but also to be able to identify areas of legal significance and consider all items which may possibly be included in a settlement.
After the individual tells his or her story, the lawyer will provide an assessment of the case. There may be issues that will require more focused research and the prudent lawyer will advise the client of the need for further research. Generally, however, the experienced lawyer will be able to provide advice regarding the basic principles of law, as follows:
Some individuals are surprised that generally the fact of termination does not imply that he or she was undesirable or that his or her job performance was unsatisfactory. Many terminations come as a “shock” to the system because they affect dedicated employees with lengthy tenure who have never taken a sick leave and whose organizational and leadership skills have greatly benefitted the employer. Difficult as it may be to reconcile such a termination with expectations, it is important to recognize that an employer has the right to terminate employment, without need for “cause” to do so. This principle is true in non-unionized settings in Ontario. Often, the decision to terminate has nothing to do with the employee’s performance and is simply based on the realities of commercial enterprise and driven by legitimate operational requirements of the business.
Where an employment is terminated without cause, the employer does not have to explain or justify its decision, and the only requirement is that the employer provide the employee with “reasonable notice”. “Reasonable notice” is the period of time required by an employee to seek and transition into suitable comparable employment. The implied term of an employment agreement is that the employer shall provide reasonable “working” notice of termination. That means an employee is given advance notice that his or her employment shall cease as of a certain future date, and that, in the meantime, he or she will continue to perform his or her job duties and receive commensurate pay. Throughout that notice period, the employee is expected to field job applications and usually allowed to attend job interviews, to enable the employee to establish himself or herself in a comparable job at the end of the notice period. Most employers find it impractical or undesirable to provide “working” notice for various reasons and choose to provide “pay in lieu” of notice when terminating an employment. Employees often prefer receiving “pay in lieu” of notice as it enables them to devote their full time and effort to look for alternative employment and places them in a situation where they may receive the package as well as quickly find new employment. It is important to recognize that it is employer’s choice whether to provide “working” notice or “pay in lieu” of notice. Generally, an employee cannot refuse “working” notice and demand “pay in lieu” of notice.
Whether the employer provides “working” notice or “pay in lieu” of notice, the issue is usually the adequacy of the notice period provided. There are statutory minimum notice requirements which the employer is required to discharge. Generally, an employee whose work is performed in Ontario, is subject to the Employment Standards Act, 2000, which provides an entitlement to notice of one (1) week for every completed year of service, to a maximum of eight (8) weeks. Federal jurisdiction employees such as those employed in chartered banks, broadcasting companies, telecommunication companies and interprovincial and international transportation companies, are subject to the Canada Labour Code, under which they are entitled to two (2) weeks of notice. In addition, there are requirements for severance payments under both statutes, where certain conditions are met.
If reasonable notice is intended to provide the bridge over which the terminated employee may cross to new employment, the minimum statutory notice requirements are generally inadequate and unrealistic. Generally, the notice requirements under “common law” presumptively apply. Common law requires a more realistic and individualized assessment of the notice period required by the terminated employee to obtain alternative comparable employment. Such assessment would include an analysis of the employee’s character of employment, his or her length of service, age, experience, training and qualifications, and the availability of similar employment. There is no formula to derive the appropriate notice period under common law. It requires a careful balancing of the employee’s re-employability factors as well as the employer’s need to alter or restructure its workforce.
The terminated employee has a positive obligation to mitigate his or her damages (“cut his or her losses”) by seeking alternative employment compatible with his or her education, training and experience. The employee will have to be able to prove job search efforts and should retain copies of job applications, ads and postings, cover letters and resumes sent in the effort to find alternative employment.
In unusual cases, there may be basis for mental distress damages, where the employer has engaged in outrageous conduct in the manner of dismissal or in regard to other circumstances surrounding the dismissal.
Considering the confusion that follows most terminations, it is highly advisable that a terminated employee seek legal advice. It is important to be able to tell one’s story to a trained professional who will be able to validate the emotional aspect of the job loss but also identify areas of legal significance and consider all consequent losses for inclusion in any settlement or claim. A proficient lawyer will be able to provide advice on basic principles of law as well as complex issues which a unique fact situation may present. An experienced lawyer will be able to conduct an assessment of the relevant factors affecting the re-employability of the individual and provide a range of the reasonable notice period. The lawyer will be able to assess whether there is basis for additional damages, i.e. mental distress or punitive damages. He or she will be able to confirm the individual’s entitlements under the law and recommend a position and a strategy moving forward, with the end in view of achieving an early settlement. Through the principles of law and an ample dose of empathy and understanding, he or she will also be able to bring about a healthy perspective in regard to the termination, affirm one’s self-worth and encourage a positive path in the aftermath of the job loss.