There are two types of dismissals (otherwise known as terminations, lay-offs, firings, etc) that can happen in a workplace: dismissals with cause, and dismissals without cause.
Most dismissals from the workplace are dismissals without cause. Employment contracts can terminate at any point by either party, and neither needs to give a reason as to why the contract has been terminate, so long as they give either proper notice or payment in lieu of notice (aka severance pay).
If you are an employee facing dismissal or an employer looking to dismiss an employee. So, if possible, it is a good idea to get to know your rights and responsibilities before beginning the process. For more information about this topic, please see the page on termination of employment in the Employment Standards Act (ESA).
This article will outline the process for dismissal without cause in Ontario, whether there are arguments that you can make if you are dismiss, and what the obligations of employers are.
What Happens If You Are Dismissed Without Cause?
Dismissals without cause can happen at any time for non-unionized employees. There is nothing stopping an employer from dismissing an employee who is not unionize, including people who perform their job well. Arguing that you have performe your job to the best of your abilities will not be reason enough to not be dismiss if your employer has chosen to terminate your employment contract.
If you are dismiss without cause in Ontario, you are owe one of two things: written notice of termination, or payment in lieu of notice, with some exceptions. So You may also receive a combination of the two.
You are not entitle to payment in lieu of notice if you:
- Have been terminating with a cause that is not trivial (i.e. for misconduct, disobedience, neglecting duties, etc.)
- You are a construction employee
- Your layoff is temporary
- You have refused a reasonable alternative employment opportunity
- You have not been employe for more than three months
The amount of notice or the amount of pay in lieu of notice that someone is entitle to receive depends on the length of their employment. For more information, read about how to determine a reasonable notice of termination and how to calculate severance pay.
You may receive a combination of notice and severance pay if the total number of weeks of pay and notice total the length of notice that you were entitle to receive.
In some cases, a termination clause in the original employment agreement may limit how much severance pay an employee is entitle to, but that is only if the termination clause is valid. Click here to read more information about whether your termination clause is valid.
Can I Argue My Dismissal without cause?
There are certain circumstances where an employee may be able to seek legal counsel and argue that they experienced a wrongful dismissal. Employers do not allow to dismiss or otherwise penalize employees for:
- Asking an employer to comply with or asking questions about the ESA
- Filing complaints, exercising their rights or participating in a proceeding under the ESA
- Disclosing their rate of pay to another employee or asking another employee about their rate of pay
- Taking or being eligible for any kind of leave (family, pregnancy, bereavement, etc.)
- Being subject to a garnishment order
- For more information, please refer to the ESA
As well, if you have experienced a history of discrimination based on a protected status according to the Ontario Human Rights Code and you believe that your dismissal was directly tied to this. So, you may be able to argue wrongful dismissal and bring an action with the Human Rights Tribunal of Ontario (HRTO). So, the HRTO has set the bar to argue wrongful dismissal very high. For more information about wrongful dismissal, please consult this article.
As an Employer, What are My Obligations When Dismissing Someone Without Cause?
When giving an employee notice, an employer will provide written notice to the employee. So, It can be delivered via mail, fax, or e-mail.
Termination pay should usually be given in a lump sum and should be calculated based on the outline written in the ESA. If you are an employer relying on a termination clause to limit the amount of termination pay you will give to an employee, first make sure that your termination clause is still enforceable.
If you are an employer who is terminating 50 or more employees, please refer to the guidelines in the ESA.
Dismissals without cause can happen at any time to any employee. Employers who are dismissing an employee should prepare to provide reasonable written notice or payment in lieu thereof.
If you are an employee with concerns about your dismissal without cause, be sure to speak to an experienced employment lawyer at Achkar Law. An employment lawyer can help you determine whether or not your dismissal was wrongful, and if it was, what you can do about it.
So, If you are an employer who is considering dismissing an employee without cause, an employment lawyer can help you determine whether your termination clause stands, and what you need to be providing your employee with.
If you are an employee or an employer with more questions about dismissals without cause, our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at 1 (800) 771-7882 or email us at firstname.lastname@example.org, and we will be happy to assist.
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