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Transcript of This webinar is brought to you by CLEONet
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This webinar is brought to you by CLEONet
www.cleonet.ca
CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged
communities in Ontario.
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About our presenter…
Karen McClellan leads the JUSTICE@work project at the Community Legal Clinic – Simcoe, Haliburton, Kawartha Lakes. As a Staff Lawyer, Karen practices employment and human rights law, with a focus on low-income and vulnerable workers. Her clients include migrant farm workers and live-in caregivers. She has presented on the legal challenges facing workers to community groups, regional clinic training conferences, and provincial and national symposiums. She also served on of the Ontario Bar Association Taskforce on Wrongful Dismissal.
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Fired or laid off? Your rights after being dismissed from employment
JUSTICE
@ work
March 23, 2010By Karen McClellan
JUSTICE@work Lawyer
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JUSTICE@work
Presented by
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Is this presentation for you?
1. You are a non-unionized worker in Ontario, Canada who has been fired, laid off or otherwise left a job
OR2. Your are an advocate, service provider or
ally that a worker or workers may turn to if fired or laid off from a job
JUSTICE
@ work
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Disclaimer
This is not a substitute for legal advice.
If you need legal assistance, call Legal Aid Ontario at 1-800-668-8258 and ask to be referred to your community legal clinic.
JUSTICE
@ work
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Topics covered
1. Events that can result in job loss
2. Your rights when you lose your job
3. How to enforce your rights
JUSTICE
@ work
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Have I been fired or let go?
JUSTICE
@ work
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Many events can result in dismissal
JUSTICE
@ work
1. Termination letter2. Verbal dismissal3. Lay off – no recall4. Abandonment5. Benefits cut-off 6. Change in ownership7. Employer bankruptcy8. Being forced to quit
(constructive dismissal)
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Protect yourself1. Get legal advice about your situation
Legal Aid Ontario: 1-800-668-8258
2. Keep copies of everything (keep at home) - Termination letter - Email and other correspondence - Evaluations, awards, performance reports - Witness names and contact information - Doctor’s notes
3. Write out a diary of events (keep at home)
JUSTICE
@ work
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Termination letter/Verbal dismissal
• Most common
JUSTICE
@ work
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Written notice and termination pay
Under the ESA:• After 3 months on job,
employer must give the worker proper written notice of termination—otherwise the worker has a right to termination pay
JUSTICE
@ work
No letter + No cause for dismissal = Termination pay
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Laid off - no recall
JUSTICE
@ work
You must choose:
(1) Consider it a dismissal OR (2) Wait for a call back
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When is a layoff permanent?
JUSTICE
@ work
Law Employment Standards Act
Common law (judge-made)
Enforcement Ministry of Labour
Court
Factors 13 weeks in a 20 week period
35 weeks in a 52 week period in special circum-stances
What is typical in the company?
What is typical in the industry?
Was a lay off something that was at thought about at the time of hiring?
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Signs the lay off is permanent (a dismissal)
– No history of layoffs at the company– Other people have been called back, but not
you– Lay offs were never part of agreement with
company – Somebody else is now doing your old job
JUSTICE
@ work
When is a layoff permanent?
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Abandonment
• Indefinite leave – often seen when medical condition
and no response to employer messages
• Alleged voluntary resignation• Failure to report • Jail – no right to have job back
JUSTICE
@ work
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Sick leaves and disability benefits
• Sick leaves are an entitlement under the ESA and under company policy
• Disability benefits are governed by contract – group benefits package
JUSTICE
@ work
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Sick leaves and disability benefits
JUSTICE
@ work
Employer obligation
Employee obligations
to accommodate medical conditions, subject to certain conditions
to provide information:1. in a timely manner2. in compliance with company
policy3. sufficient medical information
from doctor, as requested AND4. Including prognosis and
expected date of return to work
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Sick leaves and disability benefits
Protect yourself• Get legal advice right away• Ask you doctor how much time you need off
– an indefinite leave could be abandonment/frustration – if you have benefits, consider insurance claim for
Long Term Disability (LTD) or Short Term Disability (STD)
• Protect yourself from dismissal on sick leave– respond to employer inquires in a timely manner– provide medical information, as requested– keep in touch with employer– Keep a record of all correspondence with employer
JUSTICE
@ work
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Change in ownership
Protect yourself• Get legal advice before signing any
contract• Restructurings common in bad economy
JUSTICE
@ work
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Bankruptcy• Often termination by court order• Same rights-but different mechanism for
enforcement• Key issue is who gets paid first (i.e.
workers or other creditors)– Unpaid wages (vacation pay) get priority– Termination pay priority depends on whether
claim is made under the ESA or common law
JUSTICE
@ work
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BankruptcyProtect yourself• Get legal advice• Watch for correspondence from trustee, receiver
or company• If you’re owed money, notify the
Trustee/Receiver in writing• Find out which bankruptcy law applies: CCAA or
BIA?• Determine if you are owed
– unpaid wages (including vacation pay)– pension benefits– termination pay and severance
JUSTICE
@ work
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Forced to quit• Told “resign or be fired”• Material change*
– Duties– Salary– Location*Unless you accept the change
• Harassment, bullying– As of June 2010—report violence to
Ministry of Labour as safety risk• Discrimination
– Human rights complaint• If you are safe, get legal advice
before you quit
JUSTICE
@ work
See webinar: Forced to quit? Constructive, Dismissal, Discrimination, Harassment
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I’ve been fired, what are my rights?
JUSTICE
@ work
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I’ve been fired, what are my rights?
JUSTICE
@ work
1. Notice or notice pay2. Severance (if eligible)3. Unpaid wages4. Benefits in contract5. Onus on the employer to
prove cause allegations
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Your rights when fired or let go
JUSTICE
@ work
Who Source of rights
Employees without contract
Employment Standards Act OR Common Law
Employees with contract
Contract**can’t be less than ESA –
other rules apply too
Federally Regulated
Canada Labour CodeOR Common Law
Unionized Collective agreement
Independent contractors
Contract
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Your rights when fired or let go
JUSTICE
@ work
Employees without contract
ESA/CLC or Common Law
Termination pay (sometimes severance too under ESA)
Employees with contract
Contract (can’t be less than ESA)
Depends—sometimes termination and severance and/or balance of contract
Unionized workers Collective agreement
Grievance process
Independent contractors Contract
Contract rights, which are enforceable in court
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Notice and notice pay
JUSTICE
@ work
You can be fired at any time so long as you are given notice (advance warning) or pay instead
of notice
• Pay instead of notice is called termination pay
• No termination pay if you are fired for cause
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How much money am I owed?Depends on situation• Minimum termination pay is set out in law
– You can go to court to get more – If fired for cause or you quit or abandon your job, no
termination pay• Workers also get severance pay in some cases • If fixed-term contract, termination pay may be
set out in contract and/or you may also be entitled to all or part of the balance of contract
JUSTICE
@ work
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Employment Standards Act
Termination pay• Minimum termination pay set by law
– After 3 months employment, 1 week for every year worked up to 8 weeks (8+ years)
– Special rules if more than 50 workers are terminated at an employer's establishment within a four-week period
JUSTICE
@ work
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Severance pay• Severance pay is in addition to termination pay
Eligibility: • Worked for five or more years
and • Employer has a payroll in Ontario of at least $2.5 million;
or • Employer let go 50 or more workers in a six-month
period because all or part of the business closed.
JUSTICE
@ work
Employment Standards Act
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Common (judge made) law
Termination pay• A court may award more termination pay
than the ESA minimum– Considerations
1. Length of employment2. Age of worker3. Type of employment4. Availability of similar employment
– Subject to mitigation• court will deduct any new wages earned in the
notice period
JUSTICE
@ work
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Employment contracts
• Rights spelled out in contract• Rights can’t be less than those in the
Employment Standards Act• Can’t contract out of the Occupational
Health and Safety Act• Contracts imposed on workers unfairly can
sometimes be put aside
JUSTICE
@ work
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Discrimination, violence, reprisals
• No discrimination on Human Rights Code grounds
• Right to violence-free workplace • No reprisal for enforcing rights under
Employment Standards Act or Occupational Health and Safety Act– Reinstatement possible
JUSTICE
@ work
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Discrimination
• Human Rights only prohibits discrimination on the following grounds:
JUSTICE
@ work
▪ race ▪ ancestry▪ place of
origin ▪ colour▪ ethnic
origin▪ citizenship
▪ sex (including gender identity)
▪ creed (faith, religion or system of beliefs)
▪ the receipt of public assistance
▪ sexual orientation
▪ age▪ marital status▪ family status▪ disability (or
perceived disability)
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Violence and reprisals
• Unsafe work - Occupational Health and Safety
• Bill 168 (June 15, 2010) – extends Occupational Health and Safety Act to include violence in the workplace
• If you refuse work, make a complaint to the Ministry of Labour - 1-800-268-8013
JUSTICE
@ work
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Cause alleged
• Onus is on the employer to prove cause• Cause is often alleged by employers, but
this is difficult to prove • If cause is proven, the worker gets no
termination pay
JUSTICE
@ work
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‘For Cause’ allegationsSerious misconduct
– Theft– Dishonesty– Insubordination– Breach of Employer’s Rules/Company
policies– Persistent Absenteeism or Lateness– Sexual Harassment– Intoxication
JUSTICE
@ work
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‘For Cause’ allegations
Minor misconduct– Absenteeism/Lateness– Personality Conflict– Poor performance
• Persistent inability of employee to perform job duties or meet job requirements
JUSTICE
@ work
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Frustration of Contract
• Incapacity to perform work (frustration)– Permanent disability or injury that cannot be
accommodated by the employer without undue hardship• Alcohol or drug ad diction that cannot be
accommodated
JUSTICE
@ work
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Proportional Approach
• Proportional approach to dishonesty and other types of misconduct
• Evaluating the case• Written warnings for misconduct• Content of written warnings• Meetings with supervisors• Condonation of misconduct• Prejudice to employer
JUSTICE
@ work
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• Mitigating factor of long service & loyalty• Intent (dishonesty, insubordination, policy
breach)• Examples of courts’ application of
proportionate approach:• Sexual harassment• Theft/dishonesty
JUSTICE
@ work
Proportional Approach
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How do I enforce my rights?
JUSTICE
@ work
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How do I enforce my rights?
JUSTICE
@ work
1. Collect information2. Get legal advice3. Decide how to proceed
• Ministry of Labour• Federal Department of Labour• Small Claims Court• Superior Court of Justice• Human Rights Tribunal of Ontario• Canadian Human Rights Commission
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Step 1 – Collect informationProtect yourself1. Don’t accept an offer or sign a release before
getting legal advice2. Keep your documents
• Record of Employment• Termination letter• Settlement offer and release• Emails, letters, medical, performance reviews
3. Start a diary of key conversations and events4. Start and record mitigation efforts
JUSTICE
@ work
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Step 2 – Get legal advice1. For free legal advice, call Legal Aid
Ontario at 1-800-668-82582. To find a lawyer, call the Law Referral
Service at 1-800-268-8326 3. If you have been subjected
discrimination, call the Human Rights Legal Support Centre at 1-866-625-5179
JUSTICE
@ work
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Step 3 – Decide how to enforce1. Ministry of Labour/Department of Labour
– Federal Department of Labour for federally regulated industries: Banking, inter-provincial transport, television, radio, airlines, phone companies, port authorities, First Nations, federal agencies
2. Court– $25,000 or less – Small Claims– Over $25,000 – Superior Court of Justice
3. Human Rights Tribunal– Broad remedies, including compensation for loss of earnings– Canadian Human Rights Commission for federally regulated
industries
JUSTICE
@ work
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Ministry of Labour
JUSTICE
@ work
• Employment Standards Act• ESA minimum termination pay only• ESA severance (if you the meet criteria)• Simple complaint form• Ministry of Labour investigates• No risk of costs if you lose
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Ministry of Labour
JUSTICE
@ work
Length of Employment Notice Required
Less than 3 months None
3 months but less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks
Calculating termination pay
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Ministry of Labour
• multiply the regular wages for a regular work week by the sum of: – the number of completed years of employment;
and – the number of completed months of employment
divided by 12 for a year that is not completed. • 26 weeks is the maximum amount of
severance pay set out in the ESA
JUSTICE
@ work
Calculating severance pay
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Ministry of Labour
Reprisals• Enforcing Employment Standards Act
rights• Occupational Health and Safety
– Reinstatement a potential remedy
JUSTICE
@ work
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Court• Common law (judge made law)• A number claims can be considered by the
court at the same time including:• Termination pay and unpaid wages• Discrimination on Human Rights Code ground• Mental distress• Defamation• Aggravated damages (bad faith conduct)• Punitive• Special damages (moving costs, job search expenses etc…)
JUSTICE
@ work
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JUSTICE
@ work
Court
• Complex process
• No investigation• Scarce legal aid
By Ministry of Attorney General
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Court
• Termination pay based on four factors:1. Length of service2. Type of work/job duties3. Availability of commensurate employment4. Other: health/pregnancy; education; prior work experience
• No set rule • range is 2.5 weeks to 1 month per year of service
• Subject to mitigation• new income in the notice period is deducted
JUSTICE
@ work
Calculating termination pay
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Court
JUSTICE
@ work
• If you were recruited, your length of employment for the purposes of calculating termination should include the previous job
• Detrimental reliance
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Mitigation
• Duty of employee to attempt to mitigate losses flowing from dismissal
• You need to look for a new job• It is up to the employer to prove:
1. Employee failed to mitigate;2. Employee could have found commensurate employment if
she/he had tried
• “Commensurate” employment availability• Practical aspects of the current economic crisis
JUSTICE
@ work
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Costs• If you lose, you may have to pay costs
– Costs are the court’s estimate of the legal expenses of your former employer because of your case
• If you win, but are awarded less than what your employer offered you, you may also have to pay costs
• Once you start a court action, can’t abandon it without the other side’s consent – without consent you could be ordered to pay costs
JUSTICE
@ work
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You can’t go to court and the Ministry of Labour
• Dismissed workers can pursue unpaid wages and termination pay in two ways:
1. Employment Standards Act (ESA) complaint to the Ministry of Labour OR
2. Action in court for wrongful dismissal.
• You cannot do both
JUSTICE
@ work
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Important deadlines
• There are deadlines for filing a claim– ESA complaint must be made within 6 months – Court action must be started within 2 years.
• If you make an ESA complaint, but now want to pursue the matter in court, you must withdraw your ESA complaint within 2 weeks
JUSTICE
@ work
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Claims under $25K - choosing
Ministry of Labour Small Claims Court
• Short-term employment• Entry level specialization• Little training/education required• Qualify for severance pay• termination pay and/or unpaid wages the only claim• unclear if claim will be successful
• Long-term employment• More specialization• Formal training/education req.• No severance under the ESA• other legal claims in addition to termination pay/unpaid wages• access to legal representation• claim is older than 6 months• claim is for over $10,000
JUSTICE
@ work
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Fighting an allegation of cause
Get legal advice• It is up to the employer to prove cause• Look for performance reviews, awards,
emails etc. that are inconsistent with employer’s allegations
• Look for failures to investigate
JUSTICE
@ work
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Questions and discussion
JUSTICE
@ work
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This webinar was brought to you by CLEONet
For more information visit the Employment and Work section of CLEONet at
www.cleonet.ca
For more legal information webinars visit:http://www.cleonet.ca/legal_education_webinars