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Fired workers still have legal options

Daniel Lublin | Sep 07, 2007

"Great services are not canceled by one act or by one single error."
Benjamin Disraeli

Here are six factors to consider if you’ve recently been dismissed:

Severance:

If legal cause for an employee’s termination is not asserted, their performance or lack thereof is not relevant when setting the appropriate amount of severance they should receive.  Even the Supreme Court of Canada  ruled that an employee fired for lying to his employer was entitled to severance pay.

Bad faith in the manner of dismissal:

Making frivolous allegations of just cause, withholding statutorily-required severance payments, and providing misleading references are examples of the virtually unlimited spectrum of behavior that can justify a bad faith damage award.

Unionized employees:

Without exceptional circumstances, unionized employees must file a grievance, not a wrongful dismissal claim with the courts. This is exemplified in a recent column I wrote on Garry and Mark Coleman. Their claim was dismissed because the judge ruled with the defendants, agreeing that the plaintiffs ought to have first advanced a grievance under their collective bargaining agreement.

Discrimination and harassment:

Previously, outside of human rights tribunals, awards for discrimination and harassment were seldomly seen. This was until Honda Canada‘s actions in dismissing former employee Kevin Keays started to get the ball rolling on punitive and aggravated damages regarding discrimination and harassment claims.  The Ontario Court of Appeal confirmed the trial judge’s finding that employment-related discrimination and harassment could found such a claim and awarded Keays $100,000 in punitive damages.

Employment Contracts:

Anything can be incorporated into an employment contract. Amongst other factors, clauses can limit employees’ severance entitlements, demote them or reassign their jobs, change their compensation, and banish them across the country should they so please.  Lucky for employees, the courts do not always enforce written promises contracts may include. 

Releases:

Are unnecessary when providing for only the minimum statutory severance payments an employee is already entitled to. To ensure that your end of the deal is fair, meet with counsel before signing your name.

Click here for the original article from Metro News

Daniel A. Lublin is a Toronto Employment Lawyer specializing in the law of wrongful dismissal.  He can be reached at dan@toronto-employmentlawyer.com or visit www.toronto-employmentlawyer.com