slide1 n.
Download
Skip this Video
Loading SlideShow in 5 Seconds..
This webinar is brought to you by CLEONet www.cleonet.ca PowerPoint Presentation
Download Presentation
This webinar is brought to you by CLEONet www.cleonet.ca

Loading in 2 Seconds...

play fullscreen
1 / 63

This webinar is brought to you by CLEONet www.cleonet.ca - PowerPoint PPT Presentation


  • 74 Views
  • Uploaded on

This webinar is brought to you by CLEONet www.cleonet.ca. CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario. . About our presenter….

loader
I am the owner, or an agent authorized to act on behalf of the owner, of the copyrighted work described.
capcha
Download Presentation

PowerPoint Slideshow about 'This webinar is brought to you by CLEONet www.cleonet.ca' - buffy


An Image/Link below is provided (as is) to download presentation

Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.


- - - - - - - - - - - - - - - - - - - - - - - - - - E N D - - - - - - - - - - - - - - - - - - - - - - - - - -
Presentation Transcript
slide1

This webinar is brought to you by CLEONet

www.cleonet.ca

CLEONet is a web site of legal information for community workers and advocates who work with low-income and disadvantaged communities in Ontario.

slide2

About our presenter…

Karen McClellan leads the JUSTICE@work project at the Community Legal Clinic – Simcoe, Haliburton, Kawartha Lakes. As a Staff Lawyer, Karen practices employment and human rights law, with a focus on low-income and vulnerable workers. Her clients include migrant farm workers and live-in caregivers. She has presented on the legal challenges facing workers to community groups, regional clinic training conferences, and provincial and national symposiums. She also served on of the Ontario Bar Association Taskforce on Wrongful Dismissal.

fired or laid off your rights after being dismissed from employment
Fired or laid off?Your rights after being dismissed from employment

March 23, 2010

By Karen McClellan

JUSTICE@work Lawyer

JUSTICE

@work

slide4

Presented by

JUSTICE@work

is this presentation for you
Is this presentation for you?
  • You are a non-unionized worker in Ontario, Canada who has been fired, laid off or otherwise left a job

OR

  • Your are an advocate, service provider or ally that a worker or workers may turn to if fired or laid off from a job

@work

JUSTICE

disclaimer
Disclaimer

This is not a substitute for legal advice.

If you need legal assistance, call Legal Aid Ontario at 1-800-668-8258 and ask to be referred to your community legal clinic.

@work

JUSTICE

topics covered
Topics covered
  • Events that can result in job loss
  • Your rights when you lose your job
  • How to enforce your rights

@work

JUSTICE

many events can result in dismissal
Many events can result in dismissal
  • Termination letter
  • Verbal dismissal
  • Lay off – no recall
  • Abandonment
  • Benefits cut-off
  • Change in ownership
  • Employer bankruptcy
  • Being forced to quit (constructive dismissal)

@work

JUSTICE

protect yourself
Protect yourself
  • Get legal advice about your situation

Legal Aid Ontario: 1-800-668-8258

  • Keep copies of everything (keep at home)

- Termination letter

- Email and other correspondence

- Evaluations, awards, performance reports

- Witness names and contact information

- Doctor’s notes

  • Write out a diary of events (keep at home)

@work

JUSTICE

written notice and termination pay
Written notice and termination pay

Under the ESA:

  • After 3 months on job, employer must give the worker proper written notice of termination—otherwise the worker has a right to termination pay

No letter + No cause for dismissal = Termination pay

@work

JUSTICE

laid off no recall
Laid off - no recall

You must choose:

(1) Consider it a dismissal OR (2) Wait for a call back

@work

JUSTICE

when is a layoff permanent1
When is a layoff permanent?

Signs the lay off is permanent (a dismissal)

  • No history of layoffs at the company
  • Other people have been called back, but not you
  • Lay offs were never part of agreement with company
  • Somebody else is now doing your old job

@work

JUSTICE

abandonment
Abandonment
  • Indefinite leave
    • often seen when medical condition and no response to employer messages
  • Alleged voluntary resignation
  • Failure to report
  • Jail – no right to have job back

@work

JUSTICE

sick leaves and disability benefits
Sick leaves and disability benefits
  • Sick leaves are an entitlement under the ESA and under company policy
  • Disability benefits are governed by contract – group benefits package

@work

JUSTICE

sick leaves and disability benefits2
Sick leaves and disability benefits

Protect yourself

  • Get legal advice right away
  • Ask you doctor how much time you need off
    • an indefinite leave could be abandonment/frustration
    • if you have benefits, consider insurance claim for Long Term Disability (LTD) or Short Term Disability (STD)
  • Protect yourself from dismissal on sick leave
    • respond to employer inquires in a timely manner
    • provide medical information, as requested
    • keep in touch with employer
    • Keep a record of all correspondence with employer

@work

JUSTICE

change in ownership
Change in ownership

Protect yourself

  • Get legal advice before signing any contract
  • Restructurings common in bad economy

@work

JUSTICE

bankruptcy
Bankruptcy
  • Often termination by court order
  • Same rights-but different mechanism for enforcement
  • Key issue is who gets paid first (i.e. workers or other creditors)
    • Unpaid wages (vacation pay) get priority
    • Termination pay priority depends on whether claim is made under the ESA or common law

@work

JUSTICE

bankruptcy1
Bankruptcy

Protect yourself

  • Get legal advice
  • Watch for correspondence from trustee, receiver or company
  • If you’re owed money, notify the Trustee/Receiver in writing
  • Find out which bankruptcy law applies: CCAA or BIA?
  • Determine if you are owed
    • unpaid wages (including vacation pay)
    • pension benefits
    • termination pay and severance

@work

JUSTICE

forced to quit
Forced to quit
  • Told “resign or be fired”
  • Material change*
    • Duties
    • Salary
    • Location

*Unless you accept the change

  • Harassment, bullying
    • As of June 2010—report violence to Ministry of Labour as safety risk
  • Discrimination
    • Human rights complaint
  • If you are safe, get legal advice before you quit

See webinar: Forced to quit? Constructive, Dismissal, Discrimination, Harassment

@work

JUSTICE

i ve been fired what are my rights1
I’ve been fired, what are my rights?
  • Notice or notice pay
  • Severance (if eligible)
  • Unpaid wages
  • Benefits in contract
  • Onus on the employer to prove cause allegations

@work

JUSTICE

notice and notice pay
Notice and notice pay
  • You can be fired at any time so long as you are given notice (advance warning) or pay instead of notice
  • Pay instead of notice is called termination pay
  • No termination pay if you are fired for cause

@work

JUSTICE

how much money am i owed
How much money am I owed?

Depends on situation

  • Minimum termination pay is set out in law
    • You can go to court to get more
    • If fired for cause or you quit or abandon your job, no termination pay
  • Workers also get severance pay in some cases
  • If fixed-term contract, termination pay may be set out in contract and/or you may also be entitled to all or part of the balance of contract

@work

JUSTICE

employment standards act
Employment Standards Act

Termination pay

  • Minimum termination pay set by law
    • After 3 months employment, 1 week for every year worked up to 8 weeks (8+ years)
    • Special rules if more than 50 workers are terminated at an employer's establishment within a four-week period

@work

JUSTICE

employment standards act1
Employment Standards Act

Severance pay

  • Severance pay is in addition to termination pay

Eligibility:

  • Worked for five or more years

and

  • Employer has a payroll in Ontario of at least $2.5 million;

or

  • Employer let go 50 or more workers in a six-month period because all or part of the business closed.

@work

JUSTICE

common judge made law
Common (judge made) law

Termination pay

  • A court may award more termination pay than the ESA minimum
    • Considerations
        • Length of employment
        • Age of worker
        • Type of employment
        • Availability of similar employment
    • Subject to mitigation
      • court will deduct any new wages earned in the notice period

@work

JUSTICE

employment contracts
Employment contracts
  • Rights spelled out in contract
  • Rights can’t be less than those in the Employment Standards Act
  • Can’t contract out of the Occupational Health and Safety Act
  • Contracts imposed on workers unfairly can sometimes be put aside

@work

JUSTICE

discrimination violence reprisals
Discrimination, violence, reprisals
  • No discrimination on Human Rights Code grounds
  • Right to violence-free workplace
  • No reprisal for enforcing rights under Employment Standards Act or Occupational Health and Safety Act
    • Reinstatement possible

@work

JUSTICE

discrimination
Discrimination
  • Human Rights only prohibits discrimination on the following grounds:
  • race
  • ancestry
  • place of origin
  • colour
  • ethnic origin
  • citizenship
  • sex (including gender identity)
  • creed (faith, religion or system of beliefs)
  • the receipt of public assistance
  • sexual orientation
  • age
  • marital status
  • family status
  • disability (or perceived disability)

@work

JUSTICE

violence and reprisals
Violence and reprisals
  • Unsafe work - Occupational Health and Safety
  • Bill 168 (June 15, 2010) – extends Occupational Health and Safety Act to include violence in the workplace
  • If you refuse work, make a complaint to the Ministry of Labour - 1-800-268-8013

@work

JUSTICE

cause alleged
Cause alleged
  • Onus is on the employer to prove cause
  • Cause is often alleged by employers, but this is difficult to prove
  • If cause is proven, the worker gets no termination pay

@work

JUSTICE

for cause allegations
‘For Cause’ allegations

@work

JUSTICE

Serious misconduct

  • Theft
  • Dishonesty
  • Insubordination
  • Breach of Employer’s Rules/Company policies
  • Persistent Absenteeism or Lateness
  • Sexual Harassment
  • Intoxication
for cause allegations1
‘For Cause’ allegations

@work

JUSTICE

Minor misconduct

  • Absenteeism/Lateness
  • Personality Conflict
  • Poor performance
    • Persistent inability of employee to perform job duties or meet job requirements
frustration of contract
Frustration of Contract

@work

JUSTICE

  • Incapacity to perform work (frustration)
    • Permanent disability or injury that cannot be accommodated by the employer without undue hardship
      • Alcohol or drug ad diction that cannot be accommodated
proportional approach
Proportional Approach

@work

JUSTICE

  • Proportional approach to dishonesty and other types of misconduct
  • Evaluating the case
      • Written warnings for misconduct
      • Content of written warnings
      • Meetings with supervisors
      • Condonation of misconduct
      • Prejudice to employer
slide42

Proportional Approach

@work

JUSTICE

  • Mitigating factor of long service & loyalty
  • Intent (dishonesty, insubordination, policy breach)
  • Examples of courts’ application of proportionate approach:
      • Sexual harassment
      • Theft/dishonesty
how do i enforce my rights1
How do I enforce my rights?
  • Collect information
  • Get legal advice
  • Decide how to proceed
  • Ministry of Labour
  • Federal Department of Labour
  • Small Claims Court
  • Superior Court of Justice
  • Human Rights Tribunal of Ontario
  • Canadian Human Rights Commission

@work

JUSTICE

step 1 collect information
Step 1 – Collect information

Protect yourself

  • Don’t accept an offer or sign a release before getting legal advice
  • Keep your documents
      • Record of Employment
      • Termination letter
      • Settlement offer and release
      • Emails, letters, medical, performance reviews
  • Start a diary of key conversations and events
  • Start and record mitigation efforts

@work

JUSTICE

step 2 get legal advice
Step 2 – Get legal advice
  • For free legal advice, call Legal Aid Ontario at 1-800-668-8258
  • To find a lawyer, call the Law Referral Service at 1-800-268-8326
  • If you have been subjected discrimination, call the Human Rights Legal Support Centre at 1-866-625-5179

@work

JUSTICE

step 3 decide how to enforce
Step 3 – Decide how to enforce

@work

JUSTICE

  • Ministry of Labour/Department of Labour
    • Federal Department of Labour for federally regulated industries: Banking, inter-provincial transport, television, radio, airlines, phone companies, port authorities, First Nations, federal agencies
  • Court
    • $25,000 or less – Small Claims
    • Over $25,000 – Superior Court of Justice
  • Human Rights Tribunal
    • Broad remedies, including compensation for loss of earnings
    • Canadian Human Rights Commission for federally regulated industries
ministry of labour
Ministry of Labour
  • Employment Standards Act
  • ESA minimum termination pay only
  • ESA severance (if you the meet criteria)
  • Simple complaint form
  • Ministry of Labour investigates
  • No risk of costs if you lose

@work

JUSTICE

ministry of labour1
Ministry of Labour

Calculating termination pay

@work

JUSTICE

ministry of labour2
Ministry of Labour

Calculating severance pay

  • multiply the regular wages for a regular work week by the sum of:
    • the number of completed years of employment;

and

    • the number of completed months of employment divided by 12 for a year that is not completed.
  • 26 weeks is the maximum amount of severance pay set out in the ESA

@work

JUSTICE

ministry of labour3
Ministry of Labour

Reprisals

  • Enforcing Employment Standards Act rights
  • Occupational Health and Safety
    • Reinstatement a potential remedy

@work

JUSTICE

court
Court

@work

JUSTICE

  • Common law (judge made law)
  • A number claims can be considered by the court at the same time including:
      • Termination pay and unpaid wages
      • Discrimination on Human Rights Code ground
      • Mental distress
      • Defamation
      • Aggravated damages (bad faith conduct)
      • Punitive
      • Special damages (moving costs, job search expenses etc…)
slide53

Court

  • Complex process
  • No investigation
  • Scarce legal aid

@work

JUSTICE

By Ministry of Attorney General

court1
Court

Calculating termination pay

@work

JUSTICE

  • Termination pay based on four factors:
      • Length of service
      • Type of work/job duties
      • Availability of commensurate employment
      • Other: health/pregnancy; education; prior work experience
  • No set rule
      • range is 2.5 weeks to 1 month per year of service
  • Subject to mitigation
      • new income in the notice period is deducted
court2
Court
  • If you were recruited, your length of employment for the purposes of calculating termination should include the previous job
      • Detrimental reliance

@work

JUSTICE

mitigation
Mitigation

@work

JUSTICE

  • Duty of employee to attempt to mitigate losses flowing from dismissal
      • You need to look for a new job
  • It is up to the employer to prove:
    • Employee failed to mitigate;
    • Employee could have found commensurate employment if she/he had tried
  • “Commensurate” employment availability
      • Practical aspects of the current economic crisis
costs
Costs

@work

JUSTICE

  • If you lose, you may have to pay costs
    • Costs are the court’s estimate of the legal expenses of your former employer because of your case
  • If you win, but are awarded less than what your employer offered you, you may also have to pay costs
  • Once you start a court action, can’t abandon it without the other side’s consent
    • without consent you could be ordered to pay costs
you can t go to court and the ministry of labour
You can’t go to court and the Ministry of Labour
  • Dismissed workers can pursue unpaid wages and termination pay in two ways:
      • Employment Standards Act (ESA) complaint to the Ministry of Labour OR
      • Action in court for wrongful dismissal.
  • You cannot do both

@work

JUSTICE

important deadlines
Important deadlines
  • There are deadlines for filing a claim
    • ESA complaint must be made within 6 months
    • Court action must be started within 2 years.
  • If you make an ESA complaint, but now want to pursue the matter in court, you must withdraw your ESA complaint within 2 weeks

@work

JUSTICE

fighting an allegation of cause
Fighting an allegation of cause

Get legal advice

  • It is up to the employer to prove cause
  • Look for performance reviews, awards, emails etc. that are inconsistent with employer’s allegations
  • Look for failures to investigate

@work

JUSTICE

slide63

This webinar was brought to you by CLEONet

For more information visit the Employment and Work section of CLEONet at www.cleonet.ca

For more legal information webinars visit:

http://www.cleonet.ca/legal_education_webinars