Protecting Your Rights as an Employee

If your employer fires you without just cause, that is a wrongful dismissal. Under Ontario law, you are entitled to reasonable notice or pay in lieu of notice. The amount depends on the specific facts of your case.

The Employment Standards Act sets minimum entitlements — severance pay, termination pay, and vacation pay. However, you may be legally entitled to significantly more compensation at common law than the ESA minimums.

Factors that determine reasonable notice include the character of your employment, length of service, your age, and the availability of similar work (the Bardal v. Globe & Mail factors). Additional factors can increase notice, such as your employer acting in bad faith, inducing you to leave a previous position, or damaging your chances of finding new work.

There is no set formula or "rule of thumb." You need legal advice specific to your situation. Call 416-323-3614 for a consultation.

Employers in Ontario are generally not required to have a reason to dismiss an employee. However, if there is no cause for termination, the employer must provide reasonable notice or pay in lieu of notice.

If the employer fails to meet these legal obligations, you may pursue a wrongful dismissal lawsuit. Whether cause exists is often highly contentious — what an employer believes is cause may not hold up in court.

For example, employee incompetence is rarely considered just cause for dismissal. Similarly, if an employer alleges misconduct but never engaged in progressive discipline or warnings, a court may find the termination was without cause.

Even if you believe you were wrongfully dismissed, it is important to avoid hostility toward your employer. An amicable settlement is often preferable to protracted litigation. Call 416-323-3614 to discuss your options.

Long-term disability insurance protects employees who cannot work for extended periods due to injury or illness. LTD provides replacement income during recovery and enables rehabilitation and gradual return to work.

Employees on LTD are frequently dismissed by their employers — often without direct notification. These actions may constitute constructive dismissal, and a wrongful dismissal action may be available.

Key points employees should know:

• The burden of proof to establish disability coverage rests on the insured
• You must follow your physician's instructions and comply with policy requirements
• Be aware of policy exclusions such as pre-existing conditions
• Before signing any release or settlement, undergo a comprehensive medical examination
• If terminated, obtaining new LTD coverage elsewhere may be very difficult

Ken Alexander co-authored The Law on Disability Issues in the Workplace, a comprehensive resource on disability in employment law. Call 416-323-3614 for a consultation.

A wrongful dismissal can also occur if your employer makes fundamental changes to the terms of your employment without your consent. This is known as constructive dismissal.

Examples include:

• Job reassignment or demotion to lower-level work
• Salary reduction for the same hours
• Increased hours without increased pay
• Working conditions made intolerable through harassment, discrimination, or bullying

It can be difficult to prove constructive dismissal — you must show the employer demonstrated an intention to no longer be bound by the employment contract. If you suspect your employer has altered your relationship over time, seek legal advice before taking action. You may be entitled to the same compensation as if you had been formally dismissed.

Severance pay is different from, and usually received in addition to, termination pay and pay in lieu of notice. Do not confuse them — and do not rely on online severance calculators, which are often inaccurate and misleading.

Under Section 64(1) of the Employment Standards Act, severance pay applies if you were employed for 5+ years and either (a) the termination resulted from a permanent discontinuance affecting 50+ employees in six months, or (b) the employer has a payroll of $2.5 million or more.

Five key factors determine appropriate severance (reasonable notice):

1. Your age
2. Length of employment
3. Nature of employment
4. Whether you were induced to leave a secure position
5. Whether a valid employment contract limits entitlements

Do not accept any severance offer without consulting an employment lawyer. Call 416-323-3614.

If you receive a termination letter, it will outline what your employer believes you are entitled to. It is critical to understand that you may be entitled to far more at common law than the ESA minimums stated in that letter.

Employees frequently accept the initial offer without consulting a lawyer, missing out on significant compensation. The Ontario Ministry of Labour provides a termination pay calculator, but it reflects only minimum standards — not what you may actually be owed.

Key points:

• Do not accept any offer without legal advice
• Your employer cannot pressure you to accept
• The ESA calculator is not a substitute for a lawyer's assessment
• Even if cause is alleged, you may still have a valid wrongful dismissal claim

Call 416-323-3614 before signing anything.

Under the Employment Standards Act, Ontario employers must provide at least two weeks of vacation after each 12-month entitlement year, with vacation pay of at least 4% of wages earned during that period.

Important points:

• Employers cannot prevent employees from taking vacation time
• Contractual rights greater than ESA minimums prevail
• Employees cannot contract out of ESA minimums — any arrangement below 2 weeks or 4% may be a violation
• Vacation pay must be paid as a lump sum before the vacation is taken

Upon termination, vacation pay is factored into the notice period calculation. For example, if you are entitled to 14 months of notice, the amount may be increased by your vacation pay percentage. Call 416-323-3614 to ensure your vacation pay rights are protected.

An employer can fire an employee without just cause, but must provide either working notice (you continue working until the end date) or pay in lieu of notice (a lump sum for the notice period).

If you have not signed an employment contract limiting you to ESA minimums, you may be entitled to common law notice, which is normally significantly higher than ESA minimums. The longer your employment, the more critical it becomes to protect your rights.

Factors that increase pay in lieu of notice include the nature of employment, your age, seniority, and whether you were induced to leave a secure position. Call 416-323-3614 to ensure you receive the correct amount.

The Employment Standards Act outlines minimum standards for hours worked, overtime pay, vacation pay, severance pay, termination pay, and termination of employment. The Ontario Human Rights Code guarantees a workplace free from discrimination and harassment.

You may be entitled to significantly more than ESA minimums at common law.

If you believe your rights have been violated, you have two main avenues:

• Employment Standards Claim — filed with the Ministry of Labour
• Civil Action (Superior Court) — pursued with an employment lawyer

You may need to choose between these options — this decision should not be made without legal advice. Call 416-323-3614.

Even if you have been wrongfully dismissed, you have a duty to mitigate — meaning you must make reasonable efforts to find alternative employment to reduce your damages.

Key points:

• Keep a detailed log of all job search efforts (applications, resumes, interviews, seminars) with dates
• You are not required to accept work that is significantly different or of significantly lower pay
• A CEO does not need to look for entry-level work
• If you cannot find work despite genuine efforts, this can positively affect the notice period you are entitled to

Your interests are best protected through prudent planning and sound legal advice. Call 416-323-3614.

Your employment contract governs the relationship between you and your employer — whether written, oral, or implied. Even without a signed document, an employment relationship exists and Courts will imply basic terms.

Important protections:

• You cannot contract out of ESA minimums, even if you signed something to the contrary
• Your employer cannot unilaterally change your contract's fundamental terms — doing so may constitute constructive dismissal
• You cannot be forced to choose between quitting and accepting new terms

Employee vs. contractor classification: Employers sometimes label workers as "independent contractors" to avoid obligations. Courts look beyond the contract label to the actual nature of the relationship. If you are misclassified, you may be entitled to significant relief.

Ken Alexander co-authored The Written Contract of Employment (available through Emond Publishing). Call 416-323-3614.

Everyone in Ontario is entitled to a workplace free of discrimination. The Human Rights Code prohibits discrimination based on:

• Race, ancestry, place of origin, colour, ethnic origin, citizenship
• Creed, sex, sexual orientation, gender identity, gender expression
• Age, record of offences, marital status, family status, disability

Types of discrimination include direct (differential treatment), adverse effect (neutral policy with discriminatory impact), and systemic (rules and practices creating discriminatory effect).

Remedies through the Human Rights Tribunal of Ontario include reinstatement, compensation for lost earnings, damages for mental anguish, and mandatory policy changes. Call 416-323-3614.

A dismissal with cause means the employer alleges serious employee misconduct justifying termination without notice or pay. This is the most extreme form of termination and has severe consequences for the employee.

Critical points:

• The legal burden is on the employer to prove cause existed
• Many instances of alleged misconduct do not legally amount to just cause
• A cause dismissal may affect your ability to find new work — the employer may refuse a reference or note cause on your record of employment
• If cause is alleged but later found not to exist, the employer faces a wrongful dismissal lawsuit

Whether you are an employee facing a cause dismissal or an employer considering one, legal advice is essential — especially for tenured employees. Call 416-323-3614.