This webinar is brought to you by CLEONet www.cleonet.ca

1. 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.

2. 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.

3. Fired or laid off?Your rights after being dismissed from employment March 23, 2010 By Karen McClellan JUSTICE@work Lawyer JUSTICE @work

4. Presented by JUSTICE@work

5. 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

6. 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

7. Topics covered • Events that can result in job loss • Your rights when you lose your job • How to enforce your rights @work JUSTICE

8. Have I been fired or let go? @work JUSTICE

9. 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

10. 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

11. Termination letter/Verbal dismissal • Most common @work JUSTICE

12. 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

13. Laid off - no recall You must choose: (1) Consider it a dismissal OR (2) Wait for a call back @work JUSTICE

14. When is a layoff permanent? @work JUSTICE

15. 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

16. 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

17. 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

18. Sick leaves and disability benefits @work JUSTICE

19. 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

20. Change in ownership Protect yourself • Get legal advice before signing any contract • Restructurings common in bad economy @work JUSTICE

21. 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

22. 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

23. 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

24. I’ve been fired, what are my rights? @work JUSTICE

25. 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

26. Your rights when fired or let go @work JUSTICE

27. Your rights when fired or let go @work JUSTICE

28. 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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

38. ‘For Cause’ allegations @work JUSTICE Serious misconduct • Theft • Dishonesty • Insubordination • Breach of Employer’s Rules/Company policies • Persistent Absenteeism or Lateness • Sexual Harassment • Intoxication

39. ‘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

40. 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

41. 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

42. 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

43. How do I enforce my rights? @work JUSTICE

44. 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

45. 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

46. 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

47. 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

48. 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

49. Ministry of Labour Calculating termination pay @work JUSTICE

50. 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