So you’ve been fired.
For some of our clients, it is a bolt out of the blue. Completely unexpected and a shock. For others it will come as no surprise but nonetheless represents an exceedingly unpleasant, unwelcome life event.
Whether you have been terminated with or without cause, it is essential you immediately consult with an experienced employment lawyer. And one who actually takes cases to trial, which is necessary if you need to enforce your rights. Otherwise, they will have no credibility with your employer’s counsel. Yes, you want to settle. Virtually everyone does. But you also want the other side to know that you can fight effectively if necessary. Too many employment lawyers have never seen the inside of a court room. As a result, no one fears them, which redounds directly against your prospects.
If you have been terminated without cause, typically your employer will provide you with an offer to settle the claim arising from your dismissal.
If you have a written employment contract, it may set our your financial entitlements on termination. However, just because you signed an employment agreement (perhaps many years ago) does not make that agreement the last word on your entitlements. Many agreements, especially those two years old or more, contain termination provisions which the courts have held are unenforceable. This is why it is essential that you consult experienced employment law counsel. Almost invariably, you will be entitled to “reasonable notice” of the termination of your employment. Reasonable notice is a court-created concept entitling you to a termination payment based on your age, position, length of service and the difficulty you may have in obtaining alternative employment. Older, longer-serving and higher-placed employees are entitled to lengthier periods of notice, recognizing it takes them longer to find comparable employment.
Many offers have deadlines for acceptance in them. That is generally a canard, intended to frighten you into acceptance. It is invariably meaningless. If the employer is prepared to offer you an amount on Monday, why would Tuesday make a difference? Employers seldom start with their best offer.
If the offer is unacceptable, the deadline is totally irrelevant. But if you have not yet had an opportunity to consult legal counsel, it is prudent to seek a reasonable extension of say a week to allow you to talk to a lawyer. Most employers readily agree.
If you have been terminated for just cause your employer may still give you an offer. Some employers will allege cause to try to extract a favourable settlement. This may be a hardball tactic which the courts rightly denounce. Or it could be a way to allow the employee, guilty of cause, to obtain some payment and move on without the employer incurring the expense, in time and money, to prove it. An experienced employment lawyer can review the facts to determine if there is any merit to the allegations of cause and what your potential defences may be. The onus is always on the employer to prove just cause and cause is difficult to prove in most cases. And unless the employee has been guilty of wilful misconduct, the employee is still entitled to minimum payments under the Employment Standards Act. Where cause is alleged, an employer may decide to pay the employee nothing. However an experienced employment lawyer can review the circumstances and still generally negotiate a settlement.
What does you lawyer need to see to advise you on your rights?
- Your written employment agreement, if it exists;
- Any other documents which affect your compensation, such as bonus or commission plans, and stock options;
- The termination letter;
- The offer letter, if any;
- A chronology of events leading up the dismissal containing key conversations using the exact words used to the best of your recollection (while they are still fresh in your mind);
- Any recordings of meetings or telephone calls you have made;
- Any documents in your possession such as performance reviews, warnings and financial statements;
- Any information about the employer’s business such as illegal or unethical practices that would be embarrassing to the employer should it become public and which may relate to the case;
- Anything else you think your lawyer should know.
An experienced employment lawyer can review this material to advise you of your entitlements and construct a strategy to maximize any payments to you.
This may entail a demand letter with or without a draft statement of claim. We sometimes recommend a draft statement of claim be enclosed to show the employer that we are ready to sue if this matter cannot be resolved to my client’s satisfaction.
Again, it is essential that you quickly consult an experienced employment law lawyer who has trial experience in the event it is necessary to sue your former employer.
BY HOWARD LEVITT AND ROBERT TAYLOR
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada. Robert Taylor is with Levitt Sheikh.
THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-getting-fired-devastating-surprise-navigate-aftermath
