Transcript Hot Topics in Consumer Protection:

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.
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.
Fired or laid off?
Your rights after being dismissed from employment
March 23, 2010
By Karen McClellan
JUSTICE@work Lawyer
JUSTICE@ work
Presented by
JUSTICE@work
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
OR
2. Your are an advocate, service provider
or ally that a worker or workers may turn
to if fired or laid off from a job
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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.
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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
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Have I been fired or let go?
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Many events can result in dismissal
1.
2.
3.
4.
5.
6.
7.
8.
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Termination letter
Verbal dismissal
Lay off – no recall
Abandonment
Benefits cut-off
Change in ownership
Employer bankruptcy
Being forced to quit
(constructive dismissal)
Protect yourself
1.
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.
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Write out a diary of events (keep at home)
Termination letter/Verbal dismissal
• Most common
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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
No letter + No cause for dismissal = Termination pay
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Laid off - no recall
You must choose:
(1) Consider it a dismissal
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OR
(2) Wait for a call back
When is a layoff permanent?
Law
Enforcement
Factors
Employment
Standards Act
Common law
(judge-made)
Ministry of
Labour
Court
13 weeks in a
20 week period
What is typical
in the company?
35 weeks in a 52 What is typical
week period in
in the industry?
special circumWas a lay off
stances
something that
was at thought
about at the time
of hiring?
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When is a layoff permanent?
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
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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
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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
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Sick leaves and disability benefits
Employer
obligation
Employee obligations
to accommodate to provide information:
1. in a timely manner
medical
2. in compliance with company
conditions,
policy
subject to certain
3. sufficient medical information
conditions
4.
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from doctor, as requested AND
Including prognosis and
expected date of return to work
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
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Change in ownership
Protect yourself
• Get legal advice before signing any
contract
• Restructurings common in bad economy
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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
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Bankruptcy
Protect 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
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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
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See webinar: Forced to quit?
Constructive, Dismissal,
Discrimination, Harassment
I’ve been fired, what are my rights?
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I’ve been fired, what are my rights?
1.
2.
3.
4.
5.
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Notice or notice pay
Severance (if eligible)
Unpaid wages
Benefits in contract
Onus on the employer to
prove cause allegations
Your rights when fired or let go
Who
Employees without
contract
Employees with
contract
Source of rights
Employment Standards Act
OR Common Law
Contract*
*can’t be less than ESA –
other rules apply too
Federally
Regulated
Canada Labour Code
OR Common Law
Unionized
Collective agreement
Independent
contractors
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Contract
Your rights when fired or let go
Employees
without contract
Employees with
contract
Unionized workers
Independent
contractors
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ESA/CLC or
Common Law
Contract
(can’t be less than ESA)
Collective
agreement
Contract
Termination pay
(sometimes
severance too
under ESA)
Depends—
sometimes
termination and
severance and/or
balance of contract
Grievance process
Contract rights,
which are
enforceable in court
Notice and notice pay
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
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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
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Employment Standards Act
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.
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Common (judge made) law
Termination pay
• A court may award more termination pay
than the ESA minimum
– Considerations
1.
2.
3.
4.
Length of employment
Age of worker
Type of employment
Availability of similar employment
– Subject to mitigation
•
court will deduct any new wages earned in the
notice period
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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
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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
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Discrimination
• Human Rights only prohibits discrimination
on the following grounds:
race
▪ancestry
▪place of origin
▪colour
▪ethnic origin
▪citizenship
▪
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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)
▪
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
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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
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‘For Cause’ allegations
Serious misconduct
– Theft
– Dishonesty
– Insubordination
– Breach of Employer’s Rules/Company
policies
– Persistent Absenteeism or Lateness
– Sexual Harassment
– Intoxication
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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
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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
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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
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Proportional Approach
• Mitigating factor of long service & loyalty
• Intent (dishonesty, insubordination, policy
breach)
• Examples of courts’ application of
proportionate approach:
• Sexual harassment
• Theft/dishonesty
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How do I enforce my rights?
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How do I enforce my rights?
1. Collect information
2. Get legal advice
3. 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 information
Protect yourself
1. Don’t accept an offer or sign a release before
getting legal advice
2. 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 events
4. Start and record mitigation efforts
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Step 2 – Get legal advice
1. For free legal advice, call Legal Aid
Ontario at 1-800-668-8258
2. 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
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Step 3 – Decide how to enforce
1. 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
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Ministry of Labour
•
•
•
•
•
•
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
Calculating termination pay
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
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Ministry of Labour
Calculating severance pay
• 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
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Ministry of Labour
Reprisals
• Enforcing Employment Standards Act
rights
• Occupational Health and Safety
– Reinstatement a potential remedy
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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…)
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Court
• Complex process
• No investigation
• Scarce legal aid
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By Ministry of Attorney General
Court
Calculating termination pay
•
Termination pay based on four factors:
1.
2.
3.
4.
•
No set rule
•
•
Length of service
Type of work/job duties
Availability of commensurate employment
Other: health/pregnancy; education; prior work experience
range is 2.5 weeks to 1 month per year of service
Subject to mitigation
•
new income in the notice period is deducted
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Court
•
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.
2.
Employee failed to mitigate;
Employee could have found commensurate employment if
she/he had tried
• “Commensurate” employment availability
• Practical aspects of the current economic crisis
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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
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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
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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
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Claims under $25K - choosing
Ministry of Labour
Small Claims Court
• Short-term employment
• Long-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
• 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
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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
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Questions and discussion
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