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  • What is constructive dismissal in Canada?

    In Canada, constructive dismissal can be raised in one of two ways. The first instance occurs when an employer’s single act violates an essential term of an employee’s employment contract. The second occurs when a series of actions that, when combined, demonstrate the employer’s intention to breach the employment contract and no longer abide by it.

  • Do I have a constructive dismissal case?

    Generally, when an employer unilaterally reduces employee compensation or significantly alters job duties, the employee can choose to reject the changes and treat their employment as ended. If your employer has created a hostile environment by fundamentally breaching your employment contract, you may be eligible to claim constructive dismissal. Depending on the severity of the change, Canadian courts will accept your claim if a fundamental change has been made to your contract after it was signed. This means that if something was agreed upon, has now changed, your claim is valid.

  • What can you receive if you are constructively dismissed?

    If an employer is found to have constructively dismissed an employee, the employee is entitled to a severance package because the employee may be able to treat the employment contract as being at an end. This entitles the employee to notice from the employer as if the employment contract had been terminated. If such notice is not provided, then the employee should be compensated with a common law pay-in-lieu of notice. While there is not a precise formulation to calculate the content of the package, there are a few factors that can be considered. These factors include the following:

    • Employee’s age
    • Length of employment
    • Character of employment
    • Availability of similar employment
  • Can I claim constructive dismissal even after I resign?

    Yes. If you resigned because the workplace became an intimidating environment or because of a serious breach of the terms of your contract, then it may indeed be possible to claim constructive dismissal and pursue associated damages on the basis that the employer’s actions resulted in a forced departure. Keep in mind however that not all changes to the employment relationship will give rise to constructive dismissal. The breach must be “fundamental” to the contract, and what precisely is “fundamental” is determined on a case-by-case basis. If you are successful at a claim for constructive dismissal you are entitled to termination payments as if the employer had proactively terminated your employment and potentially other damages, including in relation to the way you were treated at work. It is important to act reasonably when considering bringing forward a constructive dismissal claim, otherwise it could result in a court determining that you resigned and were not dismissed from your employment.  What is “reasonable” is determined on a case-by-case and that’s why it’s important to receive proper advice from an employment lawyer.

  • What is the average payout for constructive dismissal?

    Constructive dismissal occurs where an employer does not fire an employee but instead changes the working conditions for an employee to the extent that it is considered a termination of employment in law.

    In this situation, an employee is forced to whether to stay at work and accept the changes or to walk away and claim constructive dismissal.  This is one of the hardest decisions an employee is likely to have to make in their career and for this reason, it should only be made with proper employment law expertise.

    If you are successful at claiming constructive dismissal how much can you get?

    Compensation for a constructive dismissal claim is determined on a case-by-case basis (including whether you have a contract restricting your entitlements), however, it would not be unusual to see that an employee receives one month of income (including bonuses etc.) per year of service.  This can be paid out in the form of a lump sum or as a continuation of salary/benefits.

    Specifically, in the event your employment is found to have been terminated (through constructive dismissal), courts aim to provide enough compensation based on an assessment of how long it will likely take you to find another job.

    While the courts will often look at a range of factors when setting this amount, the following four factors tend to have the greatest impact on determining the payments:

    • Age;
    • The type of role you had;
    • The length of service; and
    • The availability of similar employment.

    It is important to remember that dismissed employees have a general duty to make reasonable efforts to mitigate their losses in income by actively seeking comparable employment after their dismissal and that any compensation amounts which exceeds the minimum notice and severance pay obligations under the applicable employment standards legislation are subject to reduction once you obtain new employment and start to earn a new income.

    This is another reason why it’s important to seek proper employment law counsel to maximize the chance that you can negotiate a favourable deal.

  • What is “Just Cause” termination?

    In Ontario, an employer can terminate an employee’s employment for just cause, which if upheld, will deny the employee to statutory termination, severance pay or common law pay-in-lieu of notice. Common examples of conduct which can support a just cause termination include misconduct, disobedience or incompetence. Just cause is difficult to authenticate so employers must be careful to document their decision. If an employee feels that his/her employer did not have just cause to terminate their employment, the employee can commence an action for wrongful dismissal or depending on the facts of the case, file a complaint with the Human Rights Tribunal or Ministry of Labour.

  • Am I entitled to severance pay if terminated for “Just Cause”?

    If an employer terminates an employee’s employment for just cause, the employee will not be entitled to notice of dismissal, termination, or severance pay. Additionally, employees who are terminated for cause may not be eligible to collect Employment Insurance (EI) benefits. For this reason, instances of “for cause” termination is serious and require the attention of competent employment law counsel.

  • Is it hard to fight back if my employer fires me for cause?

    If an employee’s employment is terminated “for cause”, the employer has the right to avoid providing any notice of termination or severance pay.  This is a serious problem as you can find yourself fired without any notice and without compensation.

    Is there anything I can do? Yes!

    It is very difficult for an employer to prove termination for cause and this includes job performance.

    Employers need to specifically prove that it is fair and proportionate in the circumstances to deny an employee compensation for a termination of employment.

    While there are many more examples, the following are the kinds of conduct that employers have identified as grounds for terminating “for cause”:

    • Fraud or theft;
    • Intentional violation of any law or regulation;
    • Harassing or abusive towards other employees, clients or customers;
    • Continuous failure to perform duties owed to the company (although this generally requires consistent and careful follow up by the employer to try to rectify the poor performance); and
    • Certain off-duty misconduct.

    While the ultimate decision of whether a termination for cause is appropriate in any specific circumstances would be for a judge to decide, more often than not employees have a good chance of successfully fighting against a termination for cause and receiving compensation.

    If you do believe that you have been the victim of unjust dismissal, we strongly recommend that you seek proper employment law counsel to push back against an employer who is attempting to take away your rights through a termination for cause.

  • Can my boss fire me if I called in sick and lied about it?

    The simple answer is yes.

    Courts have generally held across Canada that discharge is an appropriate penalty for employees making false medical claims and/or lying about being sick.

    The reason is that false claims are deemed to take advantage of the employer’s reliance on an employee’s good faith, and therefore courts and arbitrators generally take a strong stance and impose harsh penalties to deter other employees from doing the same.

    Having said this, termination for cause is considered a harsh penalty in employment law and therefore it is almost always worth a review with a qualified employment lawyer to determine how to respond if you ever find yourself in this situation.

  • How many sick days am I entitled to in Ontario?

    Most employees can take up to 3 sick days of unpaid job-protected leave per year for medical reasons including personal illness, injury or medical emergency.

    It is irrelevant whether the illness, injury or medical emergency was caused by the employee or external factors beyond their control. The entitlement to 3 sick days per year is triggered once an employee has worked for their employer for at least 2 consecutive weeks.

    Of course, sick days are often unanticipated. Regardless of this fact, employers have a duty to accommodate an employee’s legitimate request to take sick leave.

    While unexpected leaves can be a source of frustration for employers, it is illegal for the employer to fire the employee simply because of the inconvenience caused to the business as a result of the sick leave.

    Courts have specifically made it clear that if the employee’s sick leave plays any role in an employer’s decision to terminate the employee’s employment, an employer can be subject to significant liability from an employment standards perspective (i.e. wrongful dismissal) and, potentially, as a result of a violation of human rights protection.

  • What is wrongful dismissal in Ontario?

    In Ontario, an employee is wrongfully dismissed if their employer terminates their employment without giving them proper notice of termination or the equivalent compensation in place of the notice. It is important to note that employers can terminate an employee at any time, as long as they provide the proper amount of notice or pay in lieu of notice. It is a common misconception that an employee cannot be terminated without reason after they finish their probationary period.

  • What if I am not happy with the termination package being offered to me by my employer?

    If your employment has been terminated by your employer and you are unhappy with the termination package being offered, do not sign any contracts, agreements, or packages without first consulting with an employment lawyer. In fact, it is wise to always consult with an employment lawyer before signing any documents provided by your employer.  An employment lawyer can help determine if the termination package offered by your employer is unreasonable and can help negotiate a better package should you be entitled to more than is being offered.

  • What do I do if I’ve been harassed at work?

    Workplace harassment occurs when someone says something or behaves in a way towards another that is known or ought to be known to be unwelcome. Workplace harassment may include offensive comments or jokes, bullying, aggressive behaviour, inappropriate staring, sexual harassment, isolating or, for example, making fun of a worker because of their gender identity. If you feel you are being harassed at work, then you should consider telling your supervisor, manager or the person elected by your employer to deal with such issues. If you feel uncomfortable telling this person, you should consider informing the next available person on the seniority ladder. If you work in a unionized environment, consider contacting your union representative. If you have any questions about whether what you are experiencing at work may be considered harassment and possibly constructive/wrongful dismissal, what your rights are and/or how you to respond, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.com.

  • Is my employer required to pay me while on maternity leave?

    Employers are not required to pay their employees while they are on maternity leave. However, some employers may choose to ‘top-up’ an employee’s salary during their leave. Employers, unless they’re bound by a collective agreement or contract, do not have to offer a ‘top-up’ plan. Through the Employment Insurance Act, eligible employees may be entitled to employment insurance (“EI”) benefits to cover their entire maternity leave period (including parental and/or pregnancy). Employees who are on maternity leave are also entitled to continue participation in certain benefit plans (i.e. pension plans, medical plans etc.). Employees who are on maternity leave also continue to earn credit for length of service/seniority in their position. We can answer any questions you may have about your pay/benefit entitlement while on maternity leave and help in the event of a conflict. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.com.

  • Is my employer allowed to fire me while I am on maternity leave?

    While it may be surprising to hear this, the answer is yes.

    Having said this, although you may be fired during your maternity leave, the fact that you are on maternity leave cannot be a reason/factor for the employer in firing you. This means that an employer cannot use the excuse that they, for example, terminated for performance reasons, but that the decision was a combination of this and the fact that you were, for example, about to begin maternity leave or are on leave.

    What this means is that it is illegal for an employer to use any of the following to be a factor (even 1%) in making a decision to terminate a person’s employment: pregnancy (of them or their partner), a plan to go onto maternity leave, being on leave, or having returned from leave.

    If you feel that maternity leave was a factor in the manner an employer has treated you, then you have a range of powerful legal options to you which should be explored so that you are in the best position to decide how to proceed.

  • What do I do if my employer fires me?

    If your employer terminates your employment, the law wants to ensure that you are provided with enough compensation so that you have enough time to secure another job without incurring any losses. Because there is a lot of confusion/misinformation about what an employee should receive on termination, we strongly recommend that an employee have any termination package or “offer” reviewed by an employment lawyer to ensure that the compensation provided for in the package meets your entitlements under the law. This is important to ensure that you were not wrongfully dismissed in the way you were treated and/or not being provided with enough compensation. Many individuals are not aware that, for example, while there are minimum notice/severance pay requirements under employment standards, there is a range of other things that employers must provide employees depending on the situation, which can result in significantly larger payments. It’s therefore important to pay attention to any deadlines provided in any offer letter you receive from your employer and not to sign off on anything until you are comfortable you are receiving sufficient compensation. This is specifically important because if you sign off there is a good chance that you are giving up your rights to sue for anything relating to your employment, including not just termination pay but also any other issues which may have occurred, such as loss of overtime pay or harassment. This approach can help you deal with any wrongful dismissal effectively.

  • How do I know if I need an employment lawyer?

    Simply put, you should consider seeking advice from an employment lawyer whenever you feel you may have an important issue that could affect the viability of your employment relationship. While not all situations warrant legal advice, it’s often worth checking in even if you are not sure, just because there are often quick/innovative approaches that can help to resolve matters before they escalate and become irreparable. To avoid this risk, if you think you may need an employment lawyer and are unsure, our suggestion is to reach out to one and have a discussion to determine whether it is worth it on balance to engage in a consultation with an employment lawyer. Please contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawers.com.

  • What can I expect in the first consultation and how much will it cost?

    While Sultan Lawyers does not provide free consultations, it is for very specific reasons to benefit our clients.

    Specifically, we insist on serving the interests of our clients with the utmost quality, and in a manner that is transparent from our first interaction. We, therefore, want to ensure that our involvement in a case is strictly limited to where we provide value and nothing more.

    In addition, because our consultations are so comprehensive, our clients often walk away with enough information and strategic advice so that they can proceed to secure a resolution of the matter without further involvement on our part (thereby saving additional costs).

    Our consultations are structured for maximum value and effectiveness. One of our skilled lawyers (as opposed to a paralegal or other individual) will review the client information in advance of the consultation whenever possible. At the one-on-one meeting (which can take place in-person or over the telephone), the lawyer will gather further relevant details from the client and provide accurate legal advice. The lawyer will also provide a post-meeting follow-up in writing.

    Gathering all relevant information in advance is also important to ensuring that we provide sound and accurate advice to our clients, as well as being compliant with The Law Society of Ontario.

    While generally the work done to prepare for and participate in the consultation is quite substantial, we only charge our clients a flat rate equal to one hour of our time for a consultation to ensure that we remain accessible. This flat rate will not increase even if the consultation itself extends beyond one hour.

    If you have any questions about our consultation process or would like to be booked with one of our lawyers, please contact Toronto employment lawyers, Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.