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Posts tagged: Reasonable Notice of Termination

Reviewing a Severance Package: What to Expect from an Employment Lawyer

By , March 7, 2018 12:26 pm

You have just been terminated. You have been given a week or so to accept a severance package but you don’t know if it is fair. That is where we come in.

We Tell You Whether Your Termination Package is Fair

We only do employment law and we review 100s of severance packages each year.

Before telling you whether we think your termination package is fair we will speak with you for about an hour to find out about the background to your termination so we can provide you with an informed opinion.

What Happens When You Meet with Us?

We ask you a lot of questions.

If you have been terminated without just cause then we will want to know all of the information a judge would take into account when deciding how much termination pay you are owed. If you were terminated with cause we need to discuss the alleged misconduct to assess whether the employer would likely prove just cause.

If you have signed an employment contract with a termination clause we will want to discuss the circumstances surrounding the contract. Recently judges have refused to enforce some termination clauses so we carefully review the termination clause to assess whether it is legally enforceable.

You Don’t Know What You Don’t Know

You may have additional legal claims against your former employer that you did not even consider. We understand you are not an employment lawyer and you don’t know what information is important. We do.

For example, your former employer may owe you more money as of your last day of employment than you thought possible.

Or you may be owed more money because the employer discriminated against you. Did you know that there are 16 personal characteristics that an employer cannot take into account when terminating your employment? Like your age, your gender or the fact you have a disability or a perceived disability.

If an employer treats you poorly during your employment, at the time of your termination, or after your termination then you may be entitled to additional compensation.

We Provide Peace of Mind

At the end of your consultation, we will tell you whether your severance package is fair and if not what we think would be fair. Some people find that going through this process gives them peace of mind and helps them move on with their lives.

For over 30 years, Doug MacLeod of the MacLeod Law Firm has been advising emploeers on all aspects of the employment relationship. If you have any questions, you can contact him directly at 416 317-9894 or at [email protected]

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.

What’s in a name – Employee or Independent Contractor?

By , March 21, 2016 10:00 am

Have you been recently terminated and the company did not provide notice or pay-in-lieu of notice because you are an “independent contractor”?

Sometimes organizations believe that it is more advantageous to categorize the working relationship as one of independent contractor in order to avoid making payroll remittances and to permit termination of the relationship without notice or pay-in-lieu of notice.

However, whether you are truly an independent contractor depends on a variety of factors. The Courts have established a category between employee and independent contractor called dependent contractor. Dependent contractors are entitled to reasonable notice, similar to an employee, upon termination.

Keenan v. Canac Kitchens

In a Keenan v. Canac Kitchens, 2015 ONSC 1055,  two dependant contractors were awarded 26 months’ reasonable notice each.

Canac Kitchens manufactured and sold kitchen cabinets. At the time Canac terminated Mr. and Mrs. Keenan, they had worked there 32 years 25 years respectively as delivery and installation supervisors. They were originally hired as full-time employees, but in or about 1987, Canac told them that they would become contractors and they were given an agreement to sign reflecting this arrangement.

The Keenans continued working under this agreement until their termination in 2009. Canac did not provide them with any notice or pay-in-lieu of notice as they were considered contractors and thus not entitled to such notice. The Keenans brought wrongful dismissal claims alleging that they were in fact employees and as such entitled to reasonable notice of termination. The Court concluded that they were dependent contractors and awarded them 26 months’ notice each.

This decision was recently upheld by the Ontario Court of Appeal. See Keenan v. Canac Kitchens Ltd., 2016 ONCA 79.

Factors Considered by the Court

  • Exclusivity of Services
  • Control
  • Ownership of Tools
  • Participation in risk and opportunity for profit
  • An assessment of the question – who business is it?

These factors are rarely black and white. The Courts will consider each factor contextually when making a decision. If the company exerts considerable control over the terms of how you provide services or if a majority of your income is derived from that one company, it’s possible that you are a dependent contractor.

If you have been terminated and the company has not provided reasonable notice or pay-in-lieu of notice because it considers you an independent contractor, you may be entitled to notice if you are a dependent contractor. One of our lawyers would be happy to meet with you to discuss your situation to see if you’re likely to be considered a dependent contractor. Please contact us at 647-204-8107 or by email at [email protected]

“The material and information provided on this blog and this website are for general information only and should not, in any respect, 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 linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

The “Bottom Line” of Restructuring

By , March 18, 2016 12:36 pm

In today’s shifting economy, restructuring is common amongst large and small employers. Restructuring may involve shifting employees within a company, but more commonly it also involves the elimination of various sectors of an employer.

For an employee, the stress of a restructuring can be lessened by understanding the employer’s obligations.

Notice or Pay

If an employee is fired as part of a restructuring, she may be entitled to notice of termination, termination pay, severance pay or additional pay in lieu of notice.  How much notice or pay can typically be 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 the employee has an enforceable contract with a termination clause, that will determine what pay or notice the employee receives.  Otherwise, the employee may be able to receive as much as one month per year of service worked for the employer.  This will depend on the employee’s age, education, experience, and length of service. It may also be affected if the employee finds another job.

Mass Lay-off

The assessment above is different if the restructuring involves a mass termination.  If more than 50 employees are laid off or terminated, the employee should receive at least eight weeks’ notice or pay in lieu – even if her contract states she should receive less.

If more than 200, or more than 500, employees are terminated at the same time the minimum notice requirements increase respectively.

An example

Josh has worked for his employer for two years and his contract states that he will receive two weeks’ notice per year of service. His company restructures and terminates 75 employees.  If Josh was the only employee terminated, he would only receive four weeks’ notice or pay.  However, in this mass termination, he will receive at least eight weeks’.

Change in Job

It is not uncommon for some employees to remain employed during restructuring, but to be offered different compensation or different roles.  If the change is significant, this may result in a constructive dismissal.  For more information about what constitutes a constructive dismissal, see here.

If you think that your employer will be restructuring, or you have been laid-off or terminated, feel free to speak with one of our lawyers who has expertise in this area, at [email protected] or 647-204-8107.

“The material and information provided on this blog and this website are for general information only and should not, in any respect, 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 linked or referred to or contained herein. No person should act or refrain from acting in reliance on any information found on this website or blog, without first retaining counsel and obtaining appropriate professional advice from a lawyer duly licensed to practice law in the relevant jurisdiction. These materials do not constitute legal advice and do not create a lawyer-client relationship between you and any of the authors or the MacLeod Law Firm.”

Severance Pay Versus Termination Pay

By , December 9, 2013 5:15 pm

When an employee is fired without cause, the employer is generally required to give notice or pay the employee in lieu of notice. Most of the time an employee is terminated without notice and given a severance package.

Termination pay

Employees who are terminated without cause are generally entitled to notice of termination. For information on what constitutes just cause see here.

The Employment Standards Act (“ESA”), sets the minimum amount of notice required. If an employee has an employment contract that specifies the amount of notice required for termination, then the contract applies, as long as it is the same or more than what is required by the ESA. The ESA notice periods vary from 0-8 weeks depending on length of service.

If the employee does not have an employment contract, than s/he is entitled to “reasonable notice”. To determine what reasonable notice is, the courts will consider whether the employee was lured from secure employment, the employee’s age, length of service, duties and the availability of similar employment given the employee’s education and experience. For more information on reasonable notice see here. Currently, the maximum amount of notice under the common law is 24 months.

An employer may choose to pay the employee a lump sum equivalent to the salary and benefits that would have been earned in the notice period. This amount is called “termination pay” under the ESA. It is otherwise referred to as payment in lieu of reasonable notice.

Severance pay

The ESA provides additional payments to long-term employees. This is called “severance pay”. If the employee has worked for the employer for five years or more and the employer has a payroll of $2.5 million or the employer terminates 50 or more employees at the same time, the terminated employee is entitled to severance pay.

Severance pay is one week per year of service up to a maximum of 26 weeks.

Severance pay is in addition to termination pay under the ESA. If the employee receives a lump sum payment in lieu of reasonable notice, the total must be more than the equivalent of the minimum required for termination and severance pay under the ESA.

If your employer has presented you with a termination or severance package, and you would like to speak with an employment lawyer, contact us at [email protected] or 647-633-9894.

MacLeod Law Firm: A 360° Perspective on Employee Termination

By , February 20, 2013 11:21 am

Jobs come and go. It’s the nature of our economy to deal with employee termination. But when this occurs, it is our job to resolve the situation fairly and efficiently. For over twenty years, MacLeod Law Firm has been advising employers and employees as well as mediating wrongful dismissal actions.

Employers decide to terminate employees for all kinds of reasons. Ideally, our employer clients seek advice before an employee is terminated. In some cases, we talk about whether employee conduct constitutes just cause. If just cause does not exist, we talk about how much notice of termination the employee should receive. We talk about how termination pay should be structured. We talk about whether it makes sense to provide a reference and/or outplacement counseling to the terminated employee. We talk about what to say at the termination meeting. Effective communication is the key and what is said at this meeting can reduce termination costs.

From the employees’ perspective, being fired is a disorienting and often traumatic experience. When employees contact us they often sense that they will be terminated. We talk about how to best prepare and position the employee for the termination. If the termination was not anticipated, we will talk about whether a severance package is fair. For answers to 20 commonly asked questions, click here. If the offer is not fair then we will negotiate better terms of settlement. If this involves litigation, we will represent you in court.

Finally, lawyers hire Doug MacLeod as a mediator in wrongful dismissal disputes.  Because he represent both employers and employees, he is impartial. Most wrongful dismissal cases settle before trial. Mediation is a tool that can facilitate settlement at any stage of the litigation process. It can even be used effectively before a wrongful dismissal action has commenced.

There you have it. Whether you are terminating an employee, or need someone to review a severance package, or you need a mediator for a wrongful dismissal case, MacLeod Law Firm is here to help and can be reached at [email protected] or at 1-888-640-1728

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