LEGAL SERVICES FOR WRONGFUL DISMISSAL CASES IN OWEN SOUND AND SURROUNDING AREA
The courts have referred to the long term employee/employer relationship as akin to that of a family. Many are at a loss when that relationship breaks down. We strive to bring some practical advice into your life as you move on. You may also find our post about your legal rights as they pertain to wrongful dismissal useful. At Tamming Law, We are your source for reliable legal advice and advocacy in employment law cases.
CAN I SUE FOR WRONGFUL DISMISSAL?
Unless you are in fact self-employed or a member of a labour union, in theory you can sue for wrongful dismissal. Unfortunately, if you are a member of a union, we as a law firm cannot help you; your union must go to bat for you.
If the employer can prove you stole from him/her or if you are guilty of gross insubordination, you may be fired for “just cause” and a lawsuit may not deliver anything, though that this is very rare.
Remember this: unless you are the victim of discrimination (see below), any employer can at any time dismiss any employee. It is not the fact of the dismissal itself that is “wrongful” but instead the notice pay provided to you that may be wrongful. If your employer has changed fundamental terms of your employment (usually involving a loss of pay or status), such may amount to “constructive dismissal”. If this applies to you, with sound legal advice in advance, you may elect to quit and sue for damages.
WHAT AM I ENTITLED TO SUE FOR?
You cannot sue to have your job back even if you wanted to. In wrongful dismissal cases, you can sue for: notice pay, additional termination pay, bonuses and benefits (if available), and in certain cases mental distress damages or damages for a breach of your human rights. Let’s go over each of these:
1. The “Floor”: Statutory Termination and Severance Pay
The Employment Standards Act sets a floor for the employer in terms of the compensation they are required to pay.
• the employer must pay one week pay for every year you have worked, to a maximum of 8 weeks (called “statutory termination pay”)
• if your employer was a large one, with a payroll of over $2.5m, it must also pay one additional week’s wages for every year you worked (to a maximum of 26 weeks)
This is only a floor. Indeed, half of our clients are paid this floor by the employer before they even retain my services. You are entitled to this floor unless the employer says you were fired for just cause.
Example: You worked for a large corporation for 20 years. No “just cause” is alleged. You will receive a floor of 8 weeks termination pay and 20 weeks of severance pay.
2. The “Top Up”: Additional Termination Pay
The courts have tacked on more pay to this floor so that, depending on your age, your education, the difficulty you may have in finding replacement work and the level of job you held, a court may award you a notice period of anywhere from several months to a maximum of 30 months. This means that any wages you would have received over the proper notice period will be paid to you in damages. There is a rough rule of thumb used by the courts of 3 or 4 weeks notice for every year served.
Example: You were a general manager, you are 57 years old and worked for 20 years. We would argue that you should receive a total of 24 months pay.
3. Bonuses and Benefits
We also claim any bonus or benefits you would have received.
4. Mental Distress Damages
You are not entitled to these type of damages for the fact of your dismissal. However, if the manner in which you were terminated was particularly harsh and if you received medical attention for the effects, you will have a claim for this kind of compensation as well. The courts have usually kept the numbers for this in the range of $7,500 to $20,000 at the very highest.
5. Mitigation Expenses
This is a fancy way of saying that any reasonable expenses you incur trying to find another job will be compensated (mileage, airfare, resume services, advertisements, etc and in rare instances the cost of relocating) together with retraining costs. We encourage you to keep track of these diligently.
6. Human Rights Violations
You may sue for a violation of your human rights by the employer. If you are fired because you are disabled and if the employer did not do enough to accommodate you, or if you were otherwise fired due to discrimination, let us know. You no longer have to go through the Ontario Human Rights Commission. This can obtain compensation in the range of $10,000 to $20,000 and sometimes higher.
YOU NEED TO FIND ANOTHER POSITION – THE DUTY TO “MITIGATE”
If you are able, you must look for a replacement job within a reasonable time of being terminated. You are allowed to catch your breath and consider your options. And if you were middle management, you do not have to sling coffee for a living. But you are expected to search out work which is roughly comparable to the position you just lost.
THE EVAPORATING CLAIM
It is possible for the financial basis of your lawsuit to evaporate. How? Remember that any money you receive from any of the following sources will be deducted at trial from your notice pay entitlement:
- Any payments made by your employer pursuant to the Employment Standards Act (the “floor” we talked about above)
- Any payments you receive from employment insurance (“EI”) have to be repaid
- Any income you receive from employment during the notice period is deducted
- Normal statutory deductions, including income tax
Example: You are 50 years old and a middle manager with 15 years. At the time you were terminated, you made $60,000 per year. Your employer paid you 8 weeks termination pay at the time you were fired, or $9,200. You have collected EI of $10,000. In the year following termination you found a lesser job that paid you $10,000 during that year. Assume we negotiate a notice period of 12 months with the employer, or $60,000. From that amount must be deducted the $9,200 in termination pay, the EI of $10,000 and the $10,000 in income from your new job. Your claim has now been reduced from $60,000 to $30,800 and then income tax must come off that yet too.
THE ADVANTAGE OF SETTLING INSTEAD OF PROCEEDING TO TRIAL
There are advantages of settling prior to trial and as soon as possible. Staying with the same example, assume that instead of going to trial we settle your claim within 3 months of the termination and you receive a lump sum based on 12 months notice pay. Here are just some of the advantages:
• you are then free to find alternative employment and in effect can achieve double recovery
• some of the settlement monies can be attributed towards legal costs, mental distress damages or the expense of finding a new job: no tax will have to be deducted from these amounts
• you can roll over termination pay into an RRSP and thus receive the pay tax free
It is rare for a wrongful dismissal lawsuit to generate a very large settlement for a client. Instead, we aim to achieve for you a settlement which will be enough to springboard you to a new career and to avoid a crushing level of debt on being terminated. We have done this for many clients over the years and would be pleased to do it for you also. Please call or email us any time if you have questions.