Frequently Asked Questions
Here are some of the most frequently asked questions we get:
I have just been handed a severance package with a deadline, what should I do next?
You’ve probably been handed a termination letter with a severance offer, a deadline, and a “release”.
An employer will often include a deadline in its severance offer, hoping that you will accept the offer out of fear.
However, a deadline does not – in many cases – extinguish your legal entitlements.
If you need more time to consider your severance offer, ask for it! Generally, an employer will provide additional time. This simple step will often relieve your anxiety.
In any case, it is recommended that you consult with an experienced employment lawyer early in the process.
Contact Ertl Lawyers today to discuss how much severance pay you might be entitled to.
Does the reason for my termination matter?
If your employer has terminated your employment “without cause” then the reason for the termination does not generally matter. In fact, the term “wrongful dismissal” does not refer to the reason for your dismissal at all. If refers to whether you were provided with the proper amount notice or pay in lieu. So, it’s basically about the amount of compensation, not the reason.
That said, if you were terminated “for cause” and the employer paid (or offered) you nothing, then the reason is important.
Also, if you were terminated for a reason relating to a protected ground under Ontario’s Human Rights Code (such as sex, age, ethnicity, etc.), then the reason matters. In such a case, you could be entitled to human rights damages on top of wrongful dismissal damages.
What Am I Entitled To? Can I Get More?
With few exceptions, if you were terminated without cause (after 3 months of employment) you are entitled to a minimum, automatic period of notice or pay in lieu under the Employment Standards Act, 2000 (the ESA). This will be between one and eight weeks, depending on your length of service. Some employees are entitled to an additional statutory payment (in circumstances where they have worked for an employer for five years or more and that employer had a 2.5 million – or more – payroll in Canada).
If you have an employment contract, it is possible that the contract “caps” your entitlements at the minimums under the ESA. Or, it could provide for something more generous than the ESA. It cannot provide less.
Finally, in the absence of contractual language that “caps” your entitlements, you would likely be entitled to much greater severance, under the common law. We call it “reasonable notice” or pay in lieu. It almost every instance, it is more generous than the minimums under the ESA.
Recommendation: For a variety of reasons, many termination provisions are deemed “invalid” or “unenforceable” and this could open the door for you to receive greater severance. Don’t despair. We regularly defeat termination provisions so that our clients are entitled to greater severance pay.
For an estimate of your potential common law entitlements, click here to use our Severance Pay Calculator.
What happens to my benefits after I am terminated?
Under the Employment Standards Act, 2000, an employer is supposed to continue your benefits for a minimum period of time. That minimum period is not very long (from 1 to 8 weeks) depending on your length of service.
However, because you might have greater entitlements under your contract or under the common law, you could be entitled to more benefits.
The only way to find out is to speak with an experienced employment lawyer, like David Ertl.
For additional information, download our free guide “Understanding Your Severance Package”.
Is your “free” phone consultation really free?
Yes. It is. And, you will speak directly with one of our top employment lawyers. You will appreciate our lawyer’s clear, friendly and informative approach. Call us today for your severance pay consultation.
Do I have to go to court (I don’t want to)?
The overwhelming majority of wrongful dismissal matters are settled without our clients ever coming near a court.
We are focused on timely action, strategy, and effective negotiations.
That said, our success in court shows your ex-employer and its lawyers that we are serious about what we do. Employers will take advantage of other lawyers that don’t have the experience that we do.
How long will it take?
Often, a matter will resolve within the first three weeks. With a certain number of matters it might take longer. If we have to commence a legal claim, the matter will still often settle within a few months. That said, each matter is different. The length of time it will likely take depends on a variety of circumstances. We would be happy to discuss this during your free consultation.
How much will it cost me?
We offer fair, flexible billing. We can charge a flat fee, an hourly fee, or a contingency fee (which is a percentage of what we recover for you). In any of these cases, no upfront retainer is required. We get paid when the matter is resolved.
We are aware of how much our competitors charge and although we do not post our rates on this website, we will say that we believe our clients keep more of their money in their pockets.
In a nutshell, we believe we provide the best cost-to-results ratio in the industry.
Can an employer “pull” its first offer?
It can happen. But it’s exceedingly rare. Why? The employer is looking for you to sign a “release” in exchange for paying you more money. If they pull an offer, they don’t get the release, and you will likely commence a lawsuit. Employers also know that, if the matter were to go to court, it could get penalized for playing hardball.
In my years of practice, I believe I have only seen an employer “pull” its first offer one time. We sued, and got much more than the first offer.
Should I try to negotiate my own severance package?
In our experience, we find that employees who try to negotiate their own severance package are likely to be offered an additional few weeks at most. Moreover, they tend to overlook (and therefore miss out on) other important entitlements.
An employee that negotiates for himself/herself communicates to their ex-employer that they are too afraid to hire a lawyer.
Several HR managers have told us that they love nothing more than negotiating directly with the employee, because they will pay less to the employee.
When/how do I get my Record of Employment?
If an employer electronically issues a Record of Employment, it has no obligation to send you a paper copy of it. The electronic version is sent to Service Canada, and you will have access to it when you log into your Service Canada account.
Employers must issue the Record of Employment within five days after the employee’s last day of work, regardless of the reason why the employee left (i.e. termination, resignation, etc.).
My Record of Employment says I was “dismissed.” Should I be concerned?
If you were terminated from your employment for any reason, then you were “dismissed” for the purpose of your Record of Employment.
Some confusion may arise because there is only one code for “dismissal” (Code M) and that code does not differentiate between a without cause termination or a termination for cause (i.e. for misconduct). Therefore, Service Canada is likely to inquire about the circumstances of your termination.
That said, nobody but Service Canada sees your Record of Employment and, in our experience, issues with the Record of Employment can be cleared up fairly quickly.
What about E.I.? Should I Apply For It?
If you are in need of economic assistance as a result of your job loss, then you should apply for E.I., and do so as early as you can. A delay in applying can affect your entitlement to E.I. You will be able to apply for E.I. once Service Canada is in receipt of your Record of Employment.
Even if you’ve been terminated “for cause” you should still apply for E.I. Why? First, even if the employer has taken the position you are not entitled any severance (because of misconduct), the fact is that your entitlement to E.I. is based on a different standard. Second, employers have no vested interest in whether you receive E.I., nor any obligation to speak with Service Canada about the reasons for your dismissal. Therefore, most employers don’t bother to communicate with E.I. about the reason for your dismissal. In the absence of any representations by the employer, Service Canada will generally accept the employee’s version of events.
How soon can I find a job after I am terminated?
You have an obligation to take reasonable steps to find comparable re-employment after you are terminated. You can find a job immediately after your termination if you wish.
However, when you find a job and how much it pays may impact your severance entitlements.
Contact Ertl Lawyers. We would be happy to assess your individual situation.
Can I go on vacation after being terminated?
Provided you are otherwise taking reasonable steps to find re-employment, taking a short vacation might be a good idea.
It’s a good idea to run this by your lawyer.
What is constructive dismissal?
Constructive dismissal occurs when your employment makes a unilateral, fundamental change to your employment without providing you sufficient notice of that change.
Common examples of constructive dismissal are: reduced pay, demotion, reduced hours of work, change in location, change in reporting structure, and workplace harassment. There are many others.
Often, the employer’s motivation is to frustrate the employee, so that the employee quits.
Timing is important in constructive dismissal. Therefore, it is highly recommended that you speak with an experienced employment lawyer before making any decisions.
In the meantime, it is recommended that you download our free guide “Constructive Dismissal” – and then call us.
My manager is out to get me. Can you help?
Sometimes a bad boss, is just a bad boss. However, sometimes a manager’s poor treatment can make continued employment impossible.
Abusive treatment can be considered a constructive dismissal, a breach of the Human Rights Code, or other regulation.
In my experience, those types of relationships don’t typically get better over time, and we are often called upon to negotiate a fair resolution based on the employee’s departure.
I’m on a Performance Improvement Plan. Can you help?
Performance improvement plans are an internal workplace policy created by the employer to evaluate your work.
In my experience, I’ve seen one or two employees survive a PIP. Therefore, I am of the view that a PIP is actually designed to get rid of someone.
Most times, when a client is put on a PIP, we are able to package them out immediately or help them successfully challenge the PIP. In the latter case, they are often terminated anyway, and we are able to negotiate a severance package for them.
I was terminated for cause. Can you help?
The threshold to terminate an employee “for cause” is quite high. Generally, the misconduct has to be especially severe (or prolonged) in order for an employer to successfully argue “cause” and pay you nothing.
Whereas the employer will often paint you in the worst possible light, we have extensive experience dealing with “cause” arguments, and have a great track record of being able to get our clients fair compensation.
If you wish to drill down on this topic a bit more, it is recommended that you download our guide “Help! I’ve Been Fired With Cause” – and then call us.
What are my rights after taking a leave from work for health, pregnancy or other reasons?
Your rights are found in both statutes and common law.
But, in a nutshell, your employer has an obligation to allow you to return to work, to your former position or a comparable position, at the completion of your leave.
If, upon your request to return to work, your employer provides you with a severance package or informs you that no comparable position is available, contact Ertl Lawyers for to explore your options.
Can I work for my former employer’s competitor after being fired?
Whether you are entitled to work for a competing company after being terminated depends, in part, on whether or not you signed an enforceable non-competition agreement.
Whether a non-competition agreement is enforceable can depend on (for example) the length of the term, the geographic area covered, and whether you were wrongfully dismissed.
This is a pretty complex area of employment law. It is highly recommended that you consult with an experienced employment lawyer.
Should I file a complaint with the Ministry of Labour about my termination entitlements?
It is highly recommended that you speak with an experienced employment lawyer before you take steps with respect to your termination entitlements.
First, with respect to the Ministry of Labour, it is responsible for enforcing the Employment Standards Act, 2000 – which is minimum standards legislation. The Ministry does not provide advice or assistance with entitlements beyond the ESA.
Important! If you file a complaint with the Ministry of Labour with respect to your entitlements on termination – and you do not withdraw your complaint within two weeks – you forfeit your right to bring a civil claim for wrongful dismissal. This could lead to a situation where you are entitled to a few weeks of statutory pay under the ESA, but because you filed a complaint with the Ministry, you forfeited your right to much greater common law severance.
Always consult with an experienced employment lawyer about your rights.
I think I was terminated for a discriminatory reason. Should I file a human rights application?
If you believe your termination was based (in whole or in part) on race, age, sex (or another protected category under Ontario’s Human Rights Code), it is recommended that you speak with an experienced employment lawyer to understand your options.
It is possible that a human rights application is the most appropriate way to proceed, but we may recommend that you file only one civil action for wrongful dismissal, and include a claim for human rights damages in that action.