Being laid off or fired from your job can be a jarring and very stressful experience. The law in Canada has recognized that employment is central to an individual’s identity and sense of purpose and on this basis offers various protections to employees.
The following is a list of questions you should ask your employer, in order to protect your rights and entitlements under the law, when you are laid off or fired.
1. Ask why you have been laid off or fired
A lay off implies a temporary suspension of your work while being fired implies a permanent situation. Your employer should be able to tell you whether the situation is permanent or temporary.
If you are being permanently terminated, it should be clear if your employment is being terminated ‘without cause’ or ‘for cause’. If it is not clear, ask your employer.
When an employer claims they are terminating your employment ‘without cause’ they do not have any obligation to inform you of their reasoning.
If the termination is ‘for cause’ the employer must tell you the reason they are terminating your employment. Being fired ‘for cause’ is quite serious as you will get no notice or financial compensation of your termination and it can impact your ability to be hired by another employer. If this is the case, it is wise to seek an employment lawyer who can help you negotiate through the process and determine if cause is properly asserted.
2. Ask if your employer had proper grounds to lay off or fire you
If you are represented by a union, your employer must give you a reason for your termination so that you and your union representative can determine if the termination was proper. If you are a private employee and in the absence of a “for cause” allegation, your employer does not have to inform you of their reasoning.
In some instances, if you are a federally-regulated employee (i.e. banks, telecommunications companies, etc) your employer is only able to terminate you without cause if there is a lack of work or job discontinuance. If you are a federally-regulated, non-people manager-employee with at least 12 months of service, ask if your termination falls into either category.
3. Ask if your employer will reconsider their decision
While it is highly unlikely that your employer will reconsider their decision, you will be in no worse a position for simply asking. Particularly if you are being terminated without cause from a large organization, ask if your termination can be delayed to offer you time to apply internally to other positions.
4. Ask for a letter of recommendation
Your employer reserves the right to deny this request, however for other legal, strategic reasons they would be wise to provide you one. In the event that they agree to provide you with a reference letter, it could aid in your search for new employment.
In addition, ask who will be providing you a reference should a new prospective employer call. An employment lawyer can help you negotiate what your former employer should say to a new prospective employer about your service.
5. Ask if you can gather your belongings, including your digital files
Make sure you ask for permission before heading back to gather your belongings from your workstation. In the event that your employer says no, ask about setting up a mutually agreeable time and/or process for you to gather your belongings.
6. Ask about your termination package including entitlement to notice, severance, accrued vacation pay and benefits
Ask that your employer explain exactly what is contained in the package they are offering you. We recommend that you always have your severance package reviewed by an employment lawyer as you may be entitled to more than your employer is offering you. When you are terminated and you are unsure when or where your next job is, it is wise not to leave money on the table.
7. Ask if you can take some time to think about it before you sign a release
Your employer is likely to provide you with a “release” document alongside your termination package. A release is a legal document that impacts your legal rights. We recommend that you have this release reviewed by an employment lawyer, as signing the release will prevent you from making a claim for your proper legal entitlements down the road.
What is the difference between getting laid off or fired?
While these terms are often used interchangeably, being laid off and fired have different consequences at law. A lay-off at law refers to a temporary situation, typically with an intention that you will be recalled by your employer. There are many strict rules and guidelines for an employer to properly temporarily lay you off. If you have been with an employer for a long time with no temporary lay-off, or your employment contract does not contemplate them, and you have recently been put on one, odds are your employer is not properly able to lay you off. We would recommend talking to an employment lawyer about this.
NOTE: This issue has taken on even greater significance during the COVID-19 emergency. Further information is provided about this in Monkhouse Law’s article on March 17, 2020 Temporary Layoffs in Ontario Due to Coronavirus and Employee Rights.
When an employee is fired, this is a permanent situation where the intention is to sever the relationship between the parties. This is where the relationship will be ended either ‘without cause’ or ‘for cause’. Typically without cause means that the employment came to an end for reasons outside of the employee’s control.
However, when an employee is terminated ‘for cause’ the employer is indicating that the matter was in the employee’s control. The result is that an employee will be disentitled from claiming employment insurance and will not receive notice or severance pay.
It is crucial to note that there is a high evidentiary burden on the employer at law to prove ‘for cause’ allegations and the allegations can be disputed. Dismissal for cause requires wilful misconduct by the employee. An employee who is honestly trying to do the job, but is just not good at it, would not qualify to be terminated for cause. An employment lawyer will be able to advise you on this issue.
What are your rights in Ontario when you are laid off or fired?
Being laid off or fired triggers certain employment law rights and obligations on the employee and employer. The rights and obligations on the parties will be specific to whether you have been laid off or fired and for what reason. In many instances, you will be entitled to at least the minimum notice stipulated in the Employment Standards Act. However, many employees in Ontario will be entitled to common law reasonable notice of their termination, which is usually a much higher amount of notice.
At Monkhouse Law, we specialize in reviewing your specific situation and pursuing claims for a larger entitlement. The lawyers at Monkhouse Law will review the facts of your case in order to advise you of what potential legal options you have.