Know what you are owed past employment

| July 25th, 2017 | No Comments »

It is standard to receive a notice when an employer wishes to end an employment relation. This notice must grant a reasonable amount of time for the employee to find a comparable job. Alternatively, the employer may provide the employee payment equivalent to the amount the employee would have earned during the notice period, inclusive of all benefits, in lieu of a notice period. When an employer fails to provide notice, then the employee may litigate to receive the notice pay for the breach of contract. The length of the notice period or pay in lieu must consider certain factors, such as age, position, length of service and labour market conditions. Overall, notice period is intended to place an employee in a comparable position had there been no termination. However, employees may also face harsh treatment from employers wishing they resign, in hopes the employee leaves voluntarily – be mindful that an employee may still seek notice damages in this instance. If the time leading to dismissal and manner of dismissal itself caused significant hardship, employees may be owed additional compensation in aggravated and/or punitive damages.

 Aggravated damages are awarded as additional compensation to the employee when it can be established that the manner of dismissal was done in bad faith, and that the breach of contract caused mental distress or damages to reputation as it relates to future employment opportunities. Bad faith conduct may include being extremely insensitive or untruthful in the dismissal process. Further, the employee must be able to prove that damages such as mental distress were also suffered. For instance, it is not enough to claim mental distress or psychological harm. Rather, there must be evidence that proves mental distress was suffered during the course of dismissal.

Punitive Damages are awarded to the employee to punish the employer for actions during the dismissal that the courts find exceptionally indecent. For punitive damages to be awarded, there needs to be an ‘independent actionable wrong’ such as a breach of good faith. To be clear, these are additional wrongs committed by the employer, independent of the breach of contract. There also may be punitive damages awarded if it is determined that the employer’s misconduct was so malicious that it offends the court’s sense of decency – an example being an employer exploiting an employee’s disability in attempt to force them to quit.  Depending on the wrongs committed, damages may range from $10 000 – $450 000. It is important to note that punitive damages require wrongs that are exceptionally reprehensible, and are thus rarely awarded. An employment law expert will be able to assess the possibility of receiving such damages.

 Overall, when facing a dismissal that caused exceptional difficulty, it is advisable to seek the assistance of an employment lawyer. It may be the case that notice pay does not fairly compensate the harm suffered, and additional damages will need to be pursued.

Severance Pay in Canada

| February 16th, 2016 | 2 Comments »


Typically, all non-unionized employees that are dismissed without cause are entitled to notice of their termination or pay in place of notice, known as severance. If you have been dismissed your employer may try to limit your severance pay through a written employment contract or offer letter.

The employer can limit your entitlements to the Employment Standards Act (the “ESA”) minimums if you are a provincially regulated or the Canada Labour Code’s minimums if you are a federally regulated.

Most employment relationships are provincially regulated and the ESA minimums can be as low as one week per year of service up to a maximum of eight (8) weeks. An additional week per year of service is possible up to a maximum of twenty-six (26) weeks if you have been with the organization for at least five (5) years and the employer has a payroll of at least $2.5 million in Ontario.

Despite the above, it is important to know that employers, including the largest and most sophisticated, often do not properly limit their employees’ entitlements to the minimums despite what might seem like appropriate language in the contract. In fact, they often get the language or procedure for limiting severance wrong. As a result, if you are terminated you may be entitled to months of severance pay above the ESA minimums. Factors such as your age, length of service, the job you performed, comparable cases and your total compensation will impact the amount of severance you are entitled to.

Our Severance Calculator can assist you in determining an estimate for your severance, but it does not replace the need to speak with a lawyer directly. A lawyer from the Whitten & Lublin team will assess your contract’s enforceability and apply the factors a judge uses to determine a fair amount of severance.


Author: Paul Macchione, Whitten & Lublin