Wrongful / Constructed Dismissal - Options

[glych t.anomaly]

Oh wondrous Tribe in your infinite glory and wisdom.

Good friend was wrongfully / constructively dismissed from his job after 2.5 years with the company.

No infractions, no write ups, no warning, Zero.

They let him go as of Monday, giving him 2.5 weeks severance, 1 week vacation pay ,and his last week of work that he has not been paid for yet.

So looking for some options that he may have in pursuing this.

1. Labor Board
2. Lawyer
3. Dont bother
4. ????

he doesnt have the money to invest in a lawyer that is not provided to him by the labor board process, are there lawyers that will do this pro bono for a % of what he could get from them?
wondering if anyone out there has dealt with this kind of thing?

Thanks.

 

[erika]

Termination of Employment | Ministry of Labour

In most cases, when an employer ends the employment of an employee who has been continuously employed for three months, the employer must provide the employee with either written notice of termination, termination pay or a combination (as long as the notice and the termination pay together equal the length of notice the employee is entitled to receive).

There's a bunch of stuff in there about the minimum he's entitled to by law etc..

And if the company are cruds, that's all he will get.

 

[erika]

An employee who does not receive the written notice required under the ESA must be given termination pay in lieu of notice. Termination pay is a lump sum payment equal to the regular wages for a regular work week that an employee would otherwise have been entitled to during the written notice period. An employee earns vacation pay on his or her termination pay. Employers must also continue to make whatever contributions would be required to maintain the benefits the employee would have been entitled to had he or she continued to be employed through the notice period.

 

[erika]

So if your buddy was there for a while, they owe him a certain number of weeks. They should be paying him in lieu of notice for that time period, and his vacation pay should reflect the full period.

 

[glych t.anomaly]

thanks, i think his only recourse would be to higher a lawyer due to him being in a management position, demoted to a lower position and then let go with no reason.

 

[stryker]

TBH..he doesn't have much recourse. They gave him his two weeks severance. He was there for under three years, that's all they're obligated to do. The whole written notice thing is a bit misleading. the notice is if they do it on the spot and offer no severance.

Get an exit clause in your contracts people!

hope things work out for your friend.

stew

 

[derek]

provincially and federally regulated companies are subject to different rules when terminating employment contracts

based on some of the information you telling about being demoted there may be a case for constructive dismissal but it's something they should have acted on at that moment (if they accepted the new role and have been in it a while they may have no recourse)

i use an awesome employment lawyer, more to help negotiate contracts i've had over the years (and one dismissal). i'll pm you the deets if you're interested

stryker is right though, it's better to negotiate exit clause upfront but this also depends on your role in the company.

 

[awwnaw]

I'm actually quite deep in this myself at the moment. A settlement is simply 'notice'. It's saying your job is going to end and here's time to go find a new one. The 'time' or notice essentially that is expected is what is outlined by employment legislation. and sounds like his contract was in line with that. Where it gets questionable is 'sufficient notice' where an employee has a leg to stand on in terms of notice; is their position and specific discipline. Ex: a CIO would have a more difficult time finding new employment so their notice period (settlement) should be longer. Unfortuantely, all of this is based on case law in your province. As it stands, yes existing legislation rules, especially if his contract echos this.

So he'd need a lawyer to genuinely review his circumstances and determine whether his is one that is similar to previous cases that have resulted in a settlement award from the tribunal. If he was awarded a settlement he'd also likely have to prove mitigation... So by the time he got in front of the tribunal he may already have a job (and they back out every month he is working from the settlement they feel he deserves) Which of course to speak with a lawyer to figure out any of this will be a few hundred for the pleasure. He can represent himself. Unfortunately he needs a case. Companies can constructively dismiss any time they want so long as they give sufficient 'notice'. Because they didn't offer any severance to me reads as though they don't think he would have any case to bring against them/don't even care about the potential nuisance.

Hope everything works out for your friend.

 

[awwnaw]

Also, while I'm sure it feels that way to him.. It doesn't sound like there was anything wrongful about his dismissal unfortunately. It's just constructive.

 

[Blysspluss]

Yep. "Laid off" is the best way to describe that. And with under 3 years, good luck finding a lawyer who would even consider looking into it.

I have been there. Best option? Take all that negative energy you feel(and want to expend on getting back at your ex-employer, or getting your just due from them) and put it into finding employment you enjoy...preferably at a joint you fit into.

Waste nothing on looking back. Get the EI started and start looking for what you want.

 

[derek]

most employment lawyers would consult on it, it's $400 in their pocket, it's a question of if there's anything that can be done to get a better settlement.

 

[mr chris]

I'm in a situation myself where the company created impossible situations for me to continue my employment and I was forced to quit. The reasons they did this was to get out of paying termination pay based on continuity of employment and to hire a replacement at half the salary. I can't afford a lawyer, though I saved as much documentation as I could to build my case. You have to keep in mind that the company has all the resources and upper management that will stick together. Remaining employees fear for their jobs and will stay quiet.

The company can also drag out any settlement payments so even though the court might side in your favor, it does not mean you will get the money anytime soon. The Labor department will guarantee only up to around $10'000 so you will have to do a judgement call about that. Though your chances of getting the money are greater as they have sufficient means of collection.

Usually the first thing you have to do is overturn the ROE to properly reflect what has occurred. This is tough, and will take time. I can't emphasize enough that you need supporting documentation. Myself as a precaution kept a double set of records off site. When they ambushed me in my office and removed me from the building this proved to be a good idea. The goal was to prevent me taking my files or any evidence with me. They also claimed that me leaving the building is acceptance of their terms (bullshit). They seized my computer and cell phone (I expected this). Of course they had nothing in writing so I demanded a written statement. That put them in a bind since if they provided nothing that would be used in itself as evidence. Once again the gamble paid off since the written statement provided incriminated themselves further. Plus never sign or agree to anything period. Of course they delayed issuing an ROE. Though another useful bit of advice is as soon as you leave the building open your case with Labor.

 

[Blysspluss]

most employment lawyers would consult on it, it's $400 in their pocket, it's a question of if there's anything that can be done to get a better settlement.

With under 3 years, the return for both the lawyer and the ex-employee would be minimal.

It just isn't worth it. Neither the money you "might" get back and then have to share with the lawyer, nor the negative energy you'll get back from it all.

 

[glych t.anomaly]

Thank you all, i will forward this info to him today.

 

[derek]

With under 3 years, the return for both the lawyer and the ex-employee would be minimal.

It just isn't worth it. Neither the money you "might" get back and then have to share with the lawyer, nor the negative energy you'll get back from it all.

not sure how it works where you are but an employment lawyer here will get about $450 just for consultation (so it's worth their time) and i was able to get four week extra severance from a company i was at less than a year (well worth the $450 i spent). even the peace of mind knowing i was being given a fair shake would be worth it.

i have no idea what you mean by negative experience.

i think your confusing suing the company for recompense versus negotiating a better package. most don't want to end up in court and will settle for dishing out a few more weeks (depending on your tenure) severance

 

[Blysspluss]

not sure how it works where you are but an employment lawyer here will get about $450 just for consultation (so it's worth their time) and i was able to get four week extra severance from a company i was at less than a year (well worth the $450 i spent). even the peace of mind knowing i was being given a fair shake would be worth it.

i have no idea what you mean by negative experience.

i think your confusing suing the company for recompense versus negotiating a better package. most don't want to end up in court and will settle for dishing out a few more weeks (depending on your tenure) severance

When I was in Toronto and got laid off, I shopped around and was told I wasn't worth anyone's time having worked at the joint for under 3 years.

Negative experience, as in..NOT just moving on. Stewing and expending your energies on something that is already over and done with.

My thoughts are still...say fuck 'em and move on.

 

[blueshrike]

He might be able to negotiate more from the company ... It would not hurt meeting with a lawyer, getting the lawyer's opinion and having the lawyer write a letter. The lawyer probably won't take it on contingency ... there is not enough here ... so he will have to pay the lawyer probably $450 an hour.

He should ask the lawyer up front how much it will cost to review the case and write a letter.

Alternatively, he could just ask the company for more. He just has to be pretty careful about how he words it so that he doesn't cock up his claim.

I have been able to get to a month a year in the past using a lawyer. That was for a 5 year gig.

Remember that when dealing with a lawyer, part of the cost is the work they do and the explanations they give. The other part of the cost is them listening to you. So if he wants to rant, he should go to a therapist. It will be cheaper. Keep the communications with the lawyer crisp and professional.

BUT the suggestion to focus on finding a better job instead of worrying about the gamble of trying to convince a company to give him more money after they let him go is also good advice. The company is going to know that he won't sue ... so they may just brush him off.

 

[agentRC4]

The package they gave him is bang on for his length of service.

 

[lobo]

Interesting comments and some info I was wondering about since my company has been on a rampage in laying off people and forcing others to quit this year.

So based on that URL, it seems that after 3 years, you're basically entitled to 1 week of pay per year of service as severance. I thought the minimum was 2 weeks of pay per year or are those just companies that are more generous about your termination?

There was one guy that got walked about two months ago who had been here for 12 years. He was offered 2.5 weeks of pay per year and has gone back and forth with them and I think got as high as 2.5 - 3 weeks. Then the CEO got wind of it and shut it down and offered something just under 2.5 weeks per year which was less than what he was initially offered. Sucks.

I like this exit clause thing some of you brought up. How likely is it that the tech industry would include that if you're not management? I learned that I could negotiate more vacation when going for a new job but could I ask for an exit clause as well or would I get laughed at if I was just going to be some network guy at a tech company?

Another guy here who's wife was let go at her job told us that they spoke with a labour lawyer who told them that there are other things that you can try and get from your previous employer if you really want to stick it to them. He too mentioned the 2 weeks per year thing up to a maximum of $10K per year. Also said that if it takes you extra time and mileage to work a similar job somewhere else, that you could sue for transportation costs? Seems a bit much but IANAL.

Keep up the discussion and sorry to hear about your friend.

Lobo

 

[lucky1]

Lobo ^ you wouldn't sue for "transportation costs" but you would sue for "damages" and would justify the amount with things like transportation costs, or job market competition

There are many variables that can affect the notice period or pay in lieu and severance entitlements. The basic ESA rights have already been highlighted and yes under three years Employers don't have much legal obligations in terms of notice. (or weeks per year they need to pay you if they fail to give you notice)

other factors include the employment contract (what does it say you are entitled too at termination?) Length of service, type of termination (single, versus group layoff situation which can include increased notice periods requirements) the type of work (union, federally regulated etc)

You mention "no issues" but does the workplace even have a formal policy around discipline which may apply in this case? Such as a written progressive discipline policy.

Also what type of firm is this- big corporate type or small company with few employees?

Worth mentioning is Wrongful Dismissal and Constructive Dismissal are two different things. This sounds more like you friends wants a wrongful dismissal case. Constructive dismissal would be a situation where the work became so unbearable as a direct result of employer actions that the incumbent had no other option but to quit. The example I'm thinking of is an employee who was harassed or bullied by a supervisor or boss.

Unfortunately anyone can be terminated at any time for any reason as long as the legal obligations are met, or as I like to say “they pay enough money they can make anyone go away” does not have to be for good reason (just cause).

If your friend wants to fight it tell him not to sign anything! and of course consult a lawyer. He could try negotiating on his own up front, not signing anyting and demanding more, depending on the company and how bad they want him gone they might just offer more! What he has to do though is build his case as someone else mentioned.

 

[awwnaw]

He might be able to negotiate more from the company ... It would not hurt meeting with a lawyer, getting the lawyer's opinion and having the lawyer write a letter. The lawyer probably won't take it on contingency ... there is not enough here ... so he will have to pay the lawyer probably $450 an hour.

He should ask the lawyer up front how much it will cost to review the case and write a letter.

Alternatively, he could just ask the company for more. He just has to be pretty careful about how he words it so that he doesn't cock up his claim.

I have been able to get to a month a year in the past using a lawyer. That was for a 5 year gig.

Remember that when dealing with a lawyer, part of the cost is the work they do and the explanations they give. The other part of the cost is them listening to you. So if he wants to rant, he should go to a therapist. It will be cheaper. Keep the communications with the lawyer crisp and professional.

BUT the suggestion to focus on finding a better job instead of worrying about the gamble of trying to convince a company to give him more money after they let him go is also good advice. The company is going to know that he won't sue ... so they may just brush him off.

This guys got it right. IMO there's a lot of misinformation in this thread, because beyond existing legislation (what your friend got) many things are circumstantial.

-Most lawyers will charge for the consultation. Every lawyer will take a case so long as you pay. They will explain legislation, what your case looks like and then next steps.
-a typical next step would be to draft a letter outlining the facts (if there are any that support a wrongful dismissal or years with the company, etc). A letter like this, would take about 3-4 hours of work of drafts and research if case law applicable to the case. At $300-$400 per hour do the math. Additionally, after sending the letter a lawyer would require a retainer so they can pick up the phone should the employers lawyer phone. Another couple thousand.
-the award by a tribunal is usually based on the circumstances, the persons position in the company (ex senior management), occupational speciality (read difficulty in finding a similar job), and length of time with the company.

So unfortunately, if you're not making $100k and were simply constructively dismissed there's not a lot of room to argue you should have received more 'notice' ($$).

Moreover, you need to demonstrate mitigation. That you have actively tried to find a job the moment you were leg go. And should you find a job 4 weeks later, and 6 months down the road you get in front of a tribunal and they decide you are owed only 6 weeks, you will be paid only 2 weeks.

 

[awwnaw]

Worth mentioning is Wrongful Dismissal and Constructive Dismissal are two different things. This sounds more like you friends wants a wrongful dismissal case. Constructive dismissal would be a situation where the work became so unbearable as a direct result of employer actions that the incumbent had no other option but to quit. The example I'm thinking of is an employee who was harassed or bullied by a supervisor or boss.

A constructive dismissal can also occur for essentially no reason at all that's evident to the employee. Ex. The person makes too much and they want to downsize, they're phasing out a discipline or service, the employee is simply mediocre but not enough to have a disciplinary record. It's a broad distinction. Which is why it often is what is preferred by employers in the RoE but they throw in a couple weeks so it's not worth the legal/claim route.

 

[Jeffsus]

I'm actually helping a friend file a claim with the Ontario Human Rights Commission after he was fired without cause several months ago.

In a different eon, I helped set up a Canadian subsidiary for a Japanese/American company and we met regularly with the lawyers, one of the take aways from that was that "employment at will" does not exist in Canada, and left me with the impression that "termination without cause" is not possible. Either you fucked up at work sufficiently to get fired, or there wasn't enough work to warrant continuing your employment, and that's basically it.

Anyway my friend went to a regular lawyer after his termination, it cost $545, and they basically said it is indeed possible to be fired without cause. There's a code for it on the ROE even. So... Maybe the lawyers our company used suck... at any rate.

This person is filing a human rights complaint since he believes his termination was racially motivated. Does your friend believe there might be anything under the inalienable human rights section that lead to his dismissal? The human rights tribunal accepted my friend's application even though he signed a waiver saying he would not file such an application.

At any rate, what I learned through this is that companies really can claim they are firing you for no reason at all, even in Ontario, which I found very strange. He received one month's severance per year of employment and was eligible for EI without contest.

I think if your friend really digs down he probably knows why he was let go.

-jM
A&D

 

[lobo]

You mention "no issues" but does the workplace even have a formal policy around discipline which may apply in this case? Such as a written progressive discipline policy.

Also what type of firm is this- big corporate type or small company with few employees?

My company is a telcom business with about 150 employees. I'm sure there are policies with discipline and stuff but I've never been involved with any of it. I do know of others from years past that had been written up and were eventually let go but I don't know all the details about them.

So basically, if your ex employer wants to be a prick and stretch it out in the courts for months on end, even if you're found in favour and can get something like 1 month or more per year, you could end up with something like a few weeks of pay if you ended up finding a job by then? Sometimes it almost seems worth it to just take the second offer they give you and count your blessings.

Lobo

 

[lucky1]

A constructive dismissal can also occur for essentially no reason at all that's evident to the employee. Ex. The person makes too much and they want to downsize, they're phasing out a discipline or service, the employee is simply mediocre but not enough to have a disciplinary record. It's a broad distinction. Which is why it often is what is preferred by employers in the RoE but they throw in a couple weeks so it's not worth the legal/claim route.

I'm not quite following you here? Do you mean wrongful dismissal ?Constructive dismissal means the Employee is the one who says "i quit" and the constructive part is the Employer made them do it for whatever reason.

Your example is probably too common these days with all the restructuring sadly. Employers don't really care what is on the ROE, but the worker who is let go cares about it since different codes affect EI Eligibility.

I work in HR so I can't really tell you too much about fighting a termination since I am on the other side of things. Sorry