When it comes to joining the unemployment line in Canada, there aren’t any truly definitive rules. (Photo: iStock)
Being let go from your job can be a devastating experience. Even getting the “it’s not you; it has nothing to do with your job performance; it’s just that we are downsizing” speech, doesn’t take the sting out of losing your job.
When it comes to joining the unemployment line in Canada, there aren’t any truly definitive rules, which could leave both employees and employers floundering at times and could significantly increase the odds of potential human rights violations. There are times when employees have been fired when they shouldn’t have been and times when they’ve done something to merit dismissal but weren’t fired.
Unusual circumstances won’t necessarily protect you
If you are an employee with a disability or if you’re away for medical, parental or pregnancy leave, you might have been thinking you’re safe from getting fired. Not so fast. It’s true that you can’t be fired because of your disability or because you’ve taken some extended time off but you can be dismissed or disciplined for other reasons such as inappropriate conduct.
If you get the feeling your employer has fired you because of your disability or because you’re on leave and your rights, your employer may be liable. If you take your employer to task, your dismissal will be assessed, looking at all relevant circumstances to see if it was indeed warranted.
Is your severance package guaranteed?
If you were not given a reasonable notice prior to being let go, your firing was not the result of a just cause and you have a contract that doesn’t cap the limit of a severance package, then one month’s severance pay for each year you’ve worked is likely what you will receive. These are variables that could be somewhat subjective, however, so seeking legal support could prove invaluable to obtaining the maximum amount of severance pay to which you are entitled.
The Employment Standards Act (ESA) says that an employee deserves a fair warning before being fired. So what that means is if you worked at your job for 10 years, you should be given 10 months’ notice before being let go. If they don’t give you notice, you’re entitled to 10 months’ pay. Note that severance doesn’t have to paid in one lump sum.
If your employer claims just cause
If your employer fires you for a specific reason, they don’t have to pay you severance. It is incumbent upon employers to prove they had reason to fire you without warning and that can sometimes prove to be difficult. Many firings then are deemed as wrongful dismissals by the courts, in which case you’d be able to claim damages.
To add salt to the wound, getting a new job quickly (as within the notice period) after being dismissed could cause problems with your severance pay. Your previous employer could take away every dollar of severance for every dollar you earn.
Actions to take if you feel your job is in jeopardy
If you have the slightest inkling you’re going to be fired from your job, try to make sure you keep any communication from your employer. Bosses usually leave paper trails for their employees, especially those they are thinking about terminating. So keep any warning letters and any responses you might have given. If anything was said to you verbally, make note of that, too. Courts love documentation and you might not remember everything when the time comes for your defence.