header_people.jpg

Posts tagged: Fired

A Change for Employees and Termination Packages: The IBM Example

By , September 7, 2018 3:48 pm

The Basics

Under the Employment Standards Act (ESA), employees who are terminated are entitled to appropriate notice of termination, which is generally a week’s worth of notice, or pay in lieu of notice, for each year worked up to a maximum of eight weeks. Not every employee is also entitled to severance.  Therefore, if you worked for a small company for twenty years, your employer might be required to give you only eight weeks of notice or pay in lieu of notice. Alternatively, the common law entitles employees to up to a month of notice, or pay in lieu of notice, for each year worked.

For this reason, many employment contracts contain a termination clause or a section that attempts to reduce the cost of terminating an employee by either introducing an alternative fixed amount or limiting what the employee can get to the bare minimums under the ESA. While termination clauses may provide you, as an employee, with security about what exactly you are entitled to should you be terminated, they are also dangerous as they can also slash the amount of money you to which you might otherwise be entitled.

Some termination clauses, however, are unenforceable: they may violate the ESA by not specifically mentioning severance pay, or be ambiguous. Because of this, many cases make their way to court.  

While the ESA outlines the minimum compensation for employees who are fired, the amount that an employee can be paid at the time of their termination can be significantly higher.  

Termination clauses have been a fiery area of employment law, and the courts have had mixed opinions on how to determine whether a termination clause is valid and lawful.  In 2017, many court decisions sided with employees because they are typically the weaker bargaining partner in an employer-employee relationship. However, in the recent case of Noah Amberber v. IBM Canada Ltd., however, the Ontario Court of Appeal ruled in favour of the employer.  This ruling sets an important precedent for judges presiding over cases where employees have taken their employer to court over potentially invalid termination clauses, and is relevant to any employee with a termination clause in their employment contract.  

Noah Amberber v. IBM Canada Ltd.

Former IBM-employee Noah Amberber argued that the termination clause in his written employment agreement, which granted him 18 weeks of salary instead of the 16 months he said he was entitled to, was unenforceable because it violated the ESA minimums, because among other things it was ambiguous.

At the first level of court, the judge agreed the termination clause was indeed ambiguously worded.  She decided it had been written unclearly, and therefore ruled in favour of Amberber.

That decision was successfully overturned in the Court of Appeal, where the judge sided with IBM that the termination clause was clear. The Appeal judge decided that, when read as a whole, the clause was decisively written. The Court of Appeal stated that the first judge “strained to find an ambiguity where none reasonably exists.”

What it All Means for You

This is an incredibly dynamic area of law that is continually changing based on the decisions of judges.  The best course of action is to try and change a termination clause before you sign it. That means seeing a lawyer once you have a new offer but before you start the job.  It also means getting advice if your employer gives you a new contract during your employment. When an employer does this, they have likely made changes to the contract try and make the termination clause better.  If you have already been terminated, with Noah Amberber v. IBM Canada Ltd. in mind, it is definitely in your best interest to figure out whether a termination clause is enforceable before signing off on a severance package by seeking advice.

While in the past, judges were more likely to rule in favour of employees because of their disadvantages in drafting the termination clause, it is likely that future rulings will be more critical of employees arguing against the validity of their contracts.  We at MacLeod Law Firm specialize in dealing with these types of situations. If you are an employee who has a termination clause in your employment contract, come and see us.

To read more about termination clauses, read on here:

If you have questions about your rights regarding termination clauses and would like more information, you can contact an employment lawyer at MacLeod Law Firm. You can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

Fired and Your Union Won’t Help?  Options to Consider

By , August 31, 2018 7:07 am

Your Rights and the Union

If you are a unionized employee who has been fired, you may be desperately searching for legal advice on how to proceed.  Unlike non-unionized employees who can bring their employers to court, employees with union representation lose that right. Because of this, there are instances in which you may benefit from having private legal counsel.

Your first step will be to find the collective agreement that you and your employer agreed to with your union.  Like employment contracts, collective agreements typically outline your conditions of employment, such as hours, wages, and overtime.  This collective agreement will also outline the process that you, as a union member, must use if your employer does not follow the agreement.  If you have opted out of membership in the union, you are still bound by the collective agreement.

Some rights never go away, regardless of whether or not you are unionized.  You have the right to refuse unsafe work, for example, and you are entitled to act on your rights without being punished by your employer or union.  If your employer breaks the collective agreement, or if you have been fired and you believe you have a legal case against your employer, you must follow the process outlined in your collective agreement.  

Your union is bound to a duty of fair representation, which means the decisions they make about representing you cannot be arbitrary, discriminatory, or made in bad faith.  They are obligated to do three things:

  • Listen to your complaint and discuss it with you;
  • Consider what you want; and
  • Make a fair and honest decision about what action, if any, to take.

However, your union is not obligated to do what you want.  They are not obligated to pursue each case until the final step of the grievance procedure, or even grieve your case.  Technically, under the duty of fair representation, they are not even required to do a particularly good job at representing you. This leads many members to feel abandoned by their union: if they are not helping you after you’ve been fired, you are certainly not alone.

In most instances, you cannot simply hire your own lawyer and take your employer to court; your lawyer will likely not have jurisdiction and will not be recognized by the courts.  However, under certain circumstances such as the ones listed below, you may be able to pursue legal counsel outside of your union.

Human Rights Complaints

You may be able to start a legal claim without your union if your complaint rests on a human rights violation.  In that instance, you may be able to file a human rights application rather than use the process outlined in your collective agreement.

If you believe you were fired or unjustly treated by your employer because of your race, ancestry, place of origin, colour, ethnic origin, citizenship, religious beliefs, sexual orientation, gender identity or expression, age, marital status, family status or disability including addiction, or a conviction for which a pardon has been granted or a record suspended, you may have grounds to file a human rights complaint.  

Your complaint will need to be valid, it must be filed within 12 months of the incident, and you will need to follow a separate set of protocols.  

And so…

If you have been unfairly treated at work or fired and your union is not giving you enough information or has directly said it won’t represent you, seeing a lawyer will be beneficial to represent you and help navigate through the process.

Independent legal counsel can help you to most effectively work with your union so that they represent you actively, promptly, and well. Often, the best approach with unions is to be proactive. If you are aware of your rights and the obligations of the employer and union, you can use this information as a tool to advocate for yourself. If you have a human rights claim, you can bypass the union and seek a remedy without them.

MacLeod Law Firm regularly advises unionized employees on their rights and brings human rights claims on their behalf.  We are willing to help individuals struggling with unions, and are able to help when the law permits. If your union is failing you, reach out to us.  We can offer honest, open, advice about how to proceed and best benefit from your specific circumstances.

If you have any questions about your rights as a unionized employee, please contact us at [email protected] or 647-204-8107 and one of our lawyers would be happy to assist you.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Wrongful Dismissal: the Retail Restructuring Edition

By , June 9, 2017 11:22 am

Recently, the National Post reported that the Hudson’s Bay Co. is eliminating 2,000 positions due to changes in the retail sector. Over the past few years, we have seen employees terminated from the Bay, Sears, Future Shop and Target to name a few. This retail restructuring can leave many employees without work and potentially without fair compensation.

We have reviewed hundreds of severance packages on behalf of employees. Some of these packages are fair and some are really unfair. When the large retailers are laying off hundreds or even thousands of employees at a time, they are often offering limited compensation to each individual employee.

We can tell you whether we think your package is fair. And in many cases, we can help you negotiate a better severance package.

Here are some a few examples of the things we look at:

Notice or Pay

If you were fired as part of a restructuring, you may be entitled to notice of termination, termination pay, severance pay or additional pay in lieu of notice.  How much is typically determined through three questions: Is there an employment contract with a termination clause? What are the employee’s right under the Employment Standards Act?  Does the employee have any right to additional notice or pay under the common law?

If you have a contract with a termination clause, your employer will try to pay only what is stated in the contract.  However, many termination clauses can be attacked as not enforceable. If there is no contract or termination clause, you may be able to receive as much as one month per year of service worked for the employer.  This will depend on your age, education, experience, and length of service. It may also be affected if you find another job.

Mass Lay-off

If more than 50 employees were fired when your employer restructured, you should receive at least eight weeks’ notice or pay in lieu – even if your contract states you should receive less. This increases if more than 200, or 500, employees are terminated at the same time.

Overtime and Bonuses

You may be owed more for the work you did before termination. If you sometimes worked more than 44 hours a week then you may be entitled to overtime pay – even if you were paid a salary. Similarly, if you receive a bonus each year then you may be owed a pro-rated share of your bonus up to your termination date.

Discrimination or Harassment

Even if you had an employment contract, you may be entitled to additional damages if you were terminated because of your age, for example, or if you were mistreated while working.

Many people never hire a lawyer. After being terminated, however, some people consult with an employment lawyer for peace of mind because they want to know if their severance package is fair. Getting an answer from an experienced employment lawyer helps them move on with their lives, a may result in increased severance compensation.

If you would like to speak to an employment lawyer about wrongful dismissal or restructuring, you can reach us at MacLeod Law Firm at [email protected] or 647-204-8107.

 

 

 

Was I Just Fired? Understanding Your Employer’s Words and Actions

By , May 3, 2017 3:41 pm

Normally, an employee knows if he has been fired. The employer sits him down, provides a termination letter and often offers a severance package.  However, on occasion, an employer’s conduct is confusing. We regularly meet with clients who want to understand whether they have been constructively dismissed or terminated.

For more information about constructive dismissal, keep reading here.

In a recent decision, the Ontario Court of Appeal considered whether an employer’s words could amount to a termination.

The Case

In Sweeting v. Mok, the employee was a nurse and office assistant to a doctor.  She had worked for the doctor for more than 22 years. Their relationship began to sour over the implementation of an electronic records system. During a particularly tense meeting, the employer doctor berated the employee and eventually told her, “Go! Get out! I am so sick of coming into this office every day and looking at your ugly face.”

Ms. Sweeting believed that she had been fired after this meeting. The doctor disagreed and said that since she did not return to work, she had resigned.

The trial judge found that the employee had been fired.  The judge held that a reasonable employee would take the doctor’s words as a termination. Further, the judge found that this angry outburst alone was enough to destroy the working relationship. The Court of Appeal agreed.

Lessons

This case highlights the fact that an employer’s words can have serious consequences.  If your employer has said or done something that made you feel like you were terminated, legally you may have been. This is particularly true if there was a heated exchange during a discipline meeting.

If you would like to speak to a lawyer at MacLeod Law Firm about termination, you can reach us at [email protected] or 647-204-8107.

“The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

 

Five Reasons to Ask an Employment Lawyer to Review Your Severance Package

By , March 9, 2017 9:09 am

We have reviewed hundreds of severance packages on behalf of employees. Some of these packages are fair and some are really unfair. We can tell you whether we think your package is fair. And in many cases, we can help you negotiate a better severance package.

To determine whether your severance package is fair we spend an hour or so with you to discuss the circumstances surrounding your termination to then provide you with an informed legal assessment of your case.

Here are five reasons why you may be entitled to an enhanced severance package:

  1. You may be owed more monies up to the date of termination. For example, if you sometimes work more than 44 hours a week then you may be entitled to overtime pay. Similarly, if you receive a bonus each year then you may be owed a pro-rated share of your bonus up to your termination date.
  1. The termination clause in your employment contract may not be enforceable. You may have signed an employment contract which states you are only entitled to the minimum notice of termination required under the Employment Standards Act. If this clause is not enforceable then you could be entitled to considerably more termination pay. There are several ways to legally attack a termination clause.
  2. Even if the termination clause in your employment agreement is enforceable, you may be entitled to additional damages if you were discriminated against while employed. For example, if you were discriminated against because of a disability, or because of your gender or race.
  3. Even if the termination clause in your employment agreement is enforceable, you may be entitled to additional damages if you were harassed while employed. This can include bullying by your supervisor.
  4. Normally an employer has the right to terminate an employee by providing notice of termination or termination pay instead of this notice. There are, however, exceptions to this general rule and in these cases you may have the right to be reinstated or the employer may be prepared to provide you with extra pay if you agree to forego the right to seek reinstatement. If you have been terminated shortly after returning to work following a pregnancy leave you can file a statutory claim and seek reinstatement.

Many people never hire a lawyer. After being terminated, however, some people consult with an employment lawyer for peace of mind because they want to know if the severance package is fair. Getting an answer from an experienced employment lawyer helps them move on with their lives.

If you would like to speak to an employment lawyer at the MacLeod Law Firm, you can reach us at [email protected] or 647-204-8107.

The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction. These materials do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.

 

 

 

Panorama Theme by Themocracy