Clarifying the Myths about Employment Law

As I represent both employers and employees, often times both types of clients are surprised as to what the entitlement of a departing employee may be. I thought that a brief overview of employment law may prove useful for future reference.

Essentially, there are two types of dismissals in Canada; dismissals for just cause (where no severance is payable) and dismissals on reasonable notice (where the employer must either give reasonable advance notice of termination or pay in lieu of such notice).

Legally, just cause is a narrow concept including such things as theft and conflicts of interest. For the purposes of this article, I won’t deal with just cause terminations.

The Biggest Surprise for Employees
Employees terminated without cause usually want to discuss all of the details leading up to their termination and give all of the reasons why they didn’t deserve to get fired. The biggest surprise for them is that the reasons for the termination are irrelevant. This is also the most difficult thing for employees to understand. A post-termination autopsy of all of the reasons you should not have been terminated is useless. Really, the only issue is if you have been provided with adequate reasonable notice.

What is adequate reasonable notice? It is the employee’s full compensation package for the amount of time which a judge would decide to be reasonable notice in all the circumstances of the case (based primarily on length of service, position, age, level of specialization, etc.).

The Biggest Surprise for Employers
The Employment Standards Act of Ontario provides for a certain statutory minimum, however, an employee is usually entitled to more. Yes Mr. Employer, it is the minimum. There is usually a common law (Judge made law developed through precedents) entitlement which exceeds the statutory minimum. Depending on the employee’s length of service, position, age and level of specialization, the entitlement can be a lot more.

I suggest going to see an employment lawyer if you have been presented with a severance package or if you are thinking of terminating an employee. Either way, the cost associated with the consultation will usually put (or keep) some extra money in your pocket.

Sabatina Vassalli
Employment Law