Employees can lose their jobs for countless different reasons - our Toronto employment lawyers have seen it all. Every employee has their own unique experience and the circumstances leading to a dismissal are always nuanced and specific to the circumstances. However, the law has developed to categorize terminations under different headings, each of which can come with its own rights, risks, remedies, and ways in which employment lawyers can help.
This article explores some of the most common general reasons for which employment might be terminated, and some of the unique considerations that arise in each kind of case.
Is there any difference between being fired, dismissed, let go, terminated, or laid off?
Generally, these are all different words referring to the same thing: your employer had decided to end your employment. As far as Canadian employment law is concerned, the terminology that your employer decides to use is, for the most part, not relevant to either you or an experienced employment lawyer. In most cases, employees are entitled to “reasonable notice” of their employment contracts termination, or payment instead of notice.
Terminated for poor performance/ wrong experience /wrong fit
Your performance, achievements, and dedication as an employee (or lack thereof) are rarely relevant to the amount of notice or payment to which you are entitled to. The main factors influencing your entitlements are your age, length of service, character of employment, and chances of re-employment to a similar role. Notice is not a reward for good service; a company’s worst employee may well be entitled to more notice than its best employee.
In narrow circumstances, our employment lawyers have seen employees terminated “for cause” (i.e., without notice) for poor performance. However, for the employer to successfully establish just cause, the employee’s performance must be extremely and consistently poor, and the employer’s warnings must be clear, progressive, and explicit. The employer must show that the employee’s performance was so poor that the failure to meet the standard was almost intentional. For this reason, very few such cases ever make it to court – and even fewer where the employer is successful.
However, employment contracts could much more easily be terminated for just cause where poor performance relates to the employee’s dishonesty. For instance, an employee’s falsification of his or her qualifications on a job application could give rise (and has given rise) to termination for just cause. Covering up or lying to hide a mistake could also give rise to just cause. The key for employees to remember is that it is not your job to be perfect, but to put in an honest effort.
Termination due to restructuring/ lack of work
"A termination due to restructuring or lack of work is a reason, but not an excuse," explains Nick Goldhawk, a Toronto employment lawyer. Employees in these circumstances are, in almost all cases, entitled to notice of termination. This includes, for instance, businesses that have permanently closed due to the COVID 19 pandemic. Companies like Shopify who have seen their stock price plummet (see, recently, the Shopify terminations) and other companies who have seen their businesses shrink. All employees who lost their jobs in these scenarios are, presumptively, entitled to reasonable notice of termination.
Exceptions to this rule are few and far between in employment law. An employee could be terminated due to the impossibility of an employment relationship by reason, for instance, of illegality. For instance, if the government were to re-criminalize cannabis, employment law dictates that employees of cannabis producers and dispensaries would likely be terminated without any notice entitlement.
Federally-regulated employees terminated due to restructuring or lack of work may be ineligible to bring a complaint for “unjust dismissal”, a specific statutory remedy. However, like any other Canadian employee, they remain entitled to sue in court for damages in lieu of reasonable notice.
Termination due to a long-term or permanent disability
Employees who have been off work due to a disability for a long, continuous period (typically, 2+ years), and who have no reasonable prospect of returning to work in the foreseeable future, may be terminated without notice due to so-called “frustration of employment”.
That said, skilled employment lawyers know that employees can still be entitled to statutory termination and severance pay, depending on the employment law legislation that applies to them. For instance, employees subject to the Ontario Employment Standards Act may be entitled to up to 8 months’ wages upon termination due to frustration related to a disability. The same employee in another jurisdiction, such as Alberta, would be entitled to nothing. Our employment law firm recommends speaking to an employment lawyer to get advice on your specific rights under your labour and employment standards regime.
Termination due to misconduct
Misconduct is a catch-all term for bad employee behaviour that could support a termination “for just cause” (i.e., without notice or pay). Misconduct could include anything such as habitual lateness, neglect of job duties, theft, dishonesty, workplace violence or harassment.
In most cases, a single instance of misconduct is not sufficient to support a termination for just cause. Except in cases of particularly severe misconduct, courts typically expect employers to demonstrate a series of escalating warnings to support a termination “for cause”.
Virtually all employees who have been terminated for cause would benefit from a consultation with an employment lawyer, as such cases are always very context-specific.
I made a mistake at work – have I committed misconduct?
According to an employment lawyer - probably not. In most cases, an honest mistake – even a mistake with severe consequences – does not give rise to a dismissal for just cause. Discipline or termination may arise, however, where an employee’s mistake is the direct result of misconduct, such as failing to follow instructions or failing to follow the employer’s policies and procedures. That said, every case turns on its own facts. If you are terminated without notice for making a mistake (or several mistakes!) our employment law firm recommends that you speak to an employment lawyer.
In most cases, your employer has no right to temporarily lay you off – unless layoffs are permitted as an express or implied term of your employment. This means that if you are subject to a layoff, you may be able to quit and sue your employer for something called “constructive dismissal”. Beware, however, that doing so comes with several risks that you need to be aware of, as one of our employment lawyers wrote about extensively last month.
Termination without cause
Termination without cause is a blanket legal term referring to any termination where employment contracts are entitled to reasonable notice. If your employer has indicated to you that you are being terminated without cause, that is good news – your employer is signalling their agreement that you are entitled to notice or compensation, and the only real question is how much you are entitled to. An employment lawyer can greatly assist in these cases.
Termination in retaliation – or “reprisal”
Employers, like employees, sometimes behave badly and can abuse their position of power over employees and their employment contracts. Luckily for employees, employment law exists to protect against some of the worst employer behaviour designed at discouraging employees from enforcing their rights with the help of an employment lawyer. Specifically, most jurisdictions prohibit employers from retaliating against employees for taking steps to enforce, protect, or seek information on their workplace rights, such as employment standards rights, workplace health and safety rights, and human rights (i.e., anti-discrimination). Employers who punish employees for doing so can be subject to steep penalties, up to and including an order to reinstate an employee and pay lost wages. For instance, in Ontario, employment law states that employers are prohibited from retaliating against employees for making legitimate complaints of workplace harassment.
If you are having an employment issue such as wrongful dismissal, unfair severance, or workplace harassment, but you’re not ready to take to anyone yet, please see the Employment Law page on our website, created by our experienced employment lawyers.
Contact the employment lawyers at Share Lawyers. Our 35+ years of experience in long term disability (LTD) law and our team of experienced employment lawyers can help you win your case against your employer. We offer free consultations and there are no fees unless you win your case. Join us on Facebook and become a Top Fan for a chance to win each month.
Denied your long term disability claim?
Contact Share Lawyers today and put our experience to work for you. Our 35+ years of experience can help you win your case against Canada Life, Desjardins, Manulife, RBC Insurance, Sun Life, and other insurance companies. We offer free consultations and there are no fees unless you win your case. Join us on Facebook and become a Top Fan for a chance to win each month.
A note from our long term disability lawyers
Taking a medical leave from work is not an easy decision to make. Concerns about providing for yourself and your family and keeping your job may cause you to want to push through your pain, but this won’t make your problems go away. Stopping work is often the smartest decision for your long term health and well-being, and your disability benefits are there to provide you with financial support until you can return to work.
If you have made the tough decision to stop working and apply for your short term disability or long term disability benefits, you may feel overwhelmed by the process and have questions that your employer and your insurance company are not able or willing to answer. Share is There to see you through and answer your questions.
Our disability law firm knows what you have been going through
We understand that things have not been easy for you over the last little while. Your health has been suffering, you are unable to work, and now your insurance company, who was supposed to be there in your time of need, has decided they will not pay your disability benefits or respect your disability claim. These benefits exist to provide you with the financial support you need so that you can focus on your health and rebuilding your life. It is unfortunate that your insurance company has not lived up to its promise. If your disability claim has been denied, we will fight to get you the benefits you are entitled to. Our disability lawyers have helped thousands of Canadians get their long term disability benefits over the past 35 years, and we can help you too.
Our experienced disability lawyers can fight back on your behalf
Share Lawyers believes that every client who is dealing with a disability claim deserves superior personal service. To achieve that goal, we have developed our team of experienced, compassionate, and caring long term disability lawyers, law clerks, and administrative staff to meet all of your needs. Our team of experienced long term disability, life insurance, employment, and critical illness insurance lawyers have made successful claims against many insurance companies, third-party administrators and employers.
If you are unable to work, your disability benefits should be there to provide you with the financial support you need. While your insurance company may be focused on finding ways to avoid paying your claim, our focus is on what is in your best interest. When Share Lawyers gets involved, you have an entire team of lawyers that are there to support you and to fight for what is yours.
Our disability claim lawyers fight for your disability insurance claim by relying on our many years of experience to apply the best strategic planning and approach in each case, using the latest technology available. Experience matters, and with Share Lawyers, you are in the best hands with 35 years of success on your side.