Employment Insurance Requirements under 3 scenarios: Quitting, Dismissed for Cause, Dismissed Without Cause

| June 7th, 2017 | No Comments »

Eligibility Requirements for Employment Insurance

Paying into the Employment Insurance program is usually automatic, with regular deductions taken from you paycheque – individuals that are self-employed may choose to pay into EI. Further, you must have worked the minimum required hours within the last year. This falls between 420 – 700 hours depending on your geographic area. For Toronto, the required annual amount of hours is 630. Individuals must also be without an income for 7 consecutive days, be actively seeking employment and maintain a record of the specific employers contacted along with the date.

Quitting

To be eligible for Employment Insurance (EI) in Canada, your loss of employment cannot be your own fault.  This means that if you voluntarily quit your employment you will not be eligible to claim EI.

Dismissed for Cause

If an employer dismisses an employee for cause then the employee is usually not entitled to EI. Being dismissed for cause means that the employee has done something wrong to warrant a dismissal without notice or a severance package. When an employee is dismissed as a result of a single incident, the wrongful act must be fundamentally incompatible with the employment relation, making continued employment unfeasible. Examples may include theft, workplace violence, or breach of confidentiality.

Dismissal for cause can also happen as the last step of progressive discipline. This requires an employee to have committed multiple wrongs, receiving a disciplinary measure for each instance. Whatever the case may be, if you feel that dismissal was not warranted, it is important to seek legal consultation. In addition to missing out on EI benefits, an employer would also owe additional payment in damages.

Dismissed Without Cause:

If an employer dismisses an employee without cause, the employee is owed notice or pay in lieu. This does not disqualify an employee’s eligibility for EI – employees that are dismissed without cause are eligible to apply for EI benefits, providing they meet the criteria mentioned above.

 

Dismissal for Poor Performance: Does an Employer Need to Provide Severance?

| March 21st, 2017 | No Comments »

Only if there is just cause for termination, the employer may terminate the employee without severance pay. As an employer, it is very difficult to establish just cause for employee incompetence or poor performance. To do so, the employer must prove that the employee fails to perform essential duties or meet the required working standard, and that this has been ongoing; an isolated incident of poor performance will likely not be sufficient. To establish just cause for termination, there must be an established objective standard of performance, and proof that the employee’s poor performance is their own fault. Any mitigating factors can be considered by the courts. Among other, mitigating factors may include volume of work, whether the employee was hired as an experienced hire, and the training provided.

If an employer claims that there are ongoing issues of unacceptable performance, then the employer must provide a warning to the employee. The warning must include the employer’s performance related concerns and the consequences that may result. It is advisable that the warning be in writing and is clearly presented so that there is no possibility of confusion. An effective warning will identify what the employee is doing wrong, along with the preferred standard by the employee. Further, support for improvement such as supplemental training should be provided and stated in the warning, with a time limit for improvement and potential consequences for failure to meet the stated objective standard.

There are rare instances that may grant an employee just cause to terminate without a severance for isolated incidences. These cases usually involve gross negligence or incompetence that cause an employer significant harm, or a lack of skills that the employee claimed to have during the hiring process.

Whenever faced with an issue of poor performance by an employee, it is always best to seek the advice of an employment law expert. It is difficult to establish just cause for performance related issues, so any decisions to terminate without severance pay should be reviewed by an employment lawyer.

Q&A: Unjust Performance Review?

| May 19th, 2015 | No Comments »

QUESTION 

This concerns an unjust annual performance appraisal that will affect my salary. My manager is expecting me to sign or to contest, the bogus appraisal this week. Should I do that? What options do I have?

ANSWER

You are not required to sign an unjust performance review that you find to be “bogus”.  If you disagree with the fact and content of the review, you should contest it immediately.  Otherwise, it will go undisputed in your file and your employer could use it against you to allege cause for your dismissal.  Terminating your employment for cause would dis-entitle you from severance.

In your rebuttal, you should include the following:

  • Your version of the story;
  • Any mitigating circumstances;
  • Whether there are any inconsistencies between the negative appraisal and your previous reviews or achievements;
  • Whether your performance standards were unreasonable;
  • Whether you lacked the support needed to meet your performance standards;
  • Whether your deficiencies were communicated to you before the appraisal;
  • Whether there were any inequities in the evaluation process;
  • Whether there were any inconsistencies between the appraisal process and company policies; and
  • Your need for time to improve.

You should also make sure to:

  • Challenge the forthcoming reduction in salary;
  • Document your disagreement in writing; and
  • Request that your rebuttal be placed in your file.

Applying these guidelines will allow you to build your own documentary campaign against cause for your dismissal.  If you think your employer is building a case against you, consult with an employment lawyer today.

Drunkenly Crashing Company Vehicle Just Cause for Dismissing Long-Term Employee

| September 20th, 2013 | No Comments »

Just Cause For Dismissing Long-Term Employee

A senior employee with a previously spotless employment record was dismissed for cause after he got drunk at lunch and crashed a company vehicle on the drive back to the office. On September 16th, 2013, the employee lost his appeal to the Ontario Court of Appeal, which upheld the trial court’s decision that the single incident constituted just cause for his employer to fire him.

Jaroslaw Dziecielski was a 23-year employee and one of the Vice Presidents of Lighting Dimensions. After visiting a client, he stopped for lunch on his way back to the office, and consumed several beers. He then resumed driving, and had a single-vehicle accident, which totaled the vehicle. Mr. Dziecielski pleaded guilty to a criminal drunk driving offense. He had also been driving the company vehicle without proper authorization from the employer.

Suing for Wrongful Dismissal

Lighting Dimensions terminated Mr. Dziecielski with cause as a result of this incident. Mr. Dziecielski sued for wrongful dismissal, arguing that he could not be terminated for cause on the strength of a single, isolated incident, particularly given his long service and clean disciplinary and performance record up to that point.

The courts agreed that, in ordinary circumstances, a single and isolated incident is not sufficient cause to dismiss a long service employee, particularly one with a clean record. However, if a single event is particularly egregious, it may constitute grounds for dismissal with cause. In this case, the Court upheld that the employee’s conduct was sufficient to make dismissal appropriate in the circumstances, due to the misconduct being serious, dangerous, having attracted a criminal conviction, and the employee having put the company at risk of lawsuits and potentially damaging its reputation.

Just Cause For Dismissing Long-Term Employee Must be Determined Contextually

The lesson to take from this case is that just cause must be determined contextually. The employee’s penalty must be proportional to their misconduct. An employee admitting to misconduct not automatically establish just cause, and a single incident of misconduct might constitute just cause if the incident is serious enough.

For example, intoxication alone is not always sufficient to establish just cause: it would not be in a workplace where employees are encouraged to drink and socialize with clients, whereas it would certainly amount to just cause for an airline pilot. Employers would be well served to consult with an employment lawyer before terminating an employee for cause, even if the employee has clearly committed wrongdoing. Employees who have been purportedly dismissed for cause should consider speaking to a lawyer to discuss their possible options.