If you have been fired in Ontario, the Employment Standards Act, 2000 (“ESA”) requires an employer to continue an employee’s wages and terms of employment including benefit contributions until the end of the notice period. Most often, employers mention the continuation of some but not all benefits. If your employer fails to continue any of the benefits you normally received during your employment, this would constitute a breach of the ESA.
The ESA only sets out an employee’s minimum statutory entitlements when dismissed, dependent on the length of service, up to a maximum of 8 weeks for notice and, if applicable, severance pay, which is a maximum of 26 weeks. However, depending on a number of factors, a dismissed employee may be entitled to more in the case of a wrongful dismissal. The courts tend to award significantly more damages than the statutory minimum, and this is what is known as common law notice.
In both circumstances, it is important to note that if you have been dismissed and are in need of your long-term disability benefits (“LTD”), you should be able to apply for them even though you are no longer working for your employer because your benefits coverage should be continued throughout your notice period.
For example, in Brito v. Canac Kitchens, 2012 ONCA 61 (CanLII), the Plaintiff was a 55-year old employee with 24 years of service who was fired by the Defendant without cause. The Plaintiff was only provided with his minimum entitlements under the ESA, which is 8 weeks’ notice. Although the Plaintiff was able to find another job within 2 weeks of dismissal, the new job did not include STD or LTD benefits. Approximately 1.5 years later, the Plaintiff was diagnosed with cancer and became totally disabled.
The Judge held that the Plaintiff was entitled to 22 months of reasonable notice and since the total disability took place during what should have been his notice period, he was awarded an amount equal to the LTD benefits he would have received from the date he became disabled until the age of 65.
Therefore, if you experience a totally disabling disability after your termination but during your notice period, you should still be eligible to receive LTD benefits.
If you have been terminated and think you may need to apply for long term disability benefits, contact Monkhouse Law today for a free 30-minute consultation to discuss your options.
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