Without Cause Terminations – How they workachkarlaw-admin
Without Cause terminations are never easy. Losing your job is an overwhelming and intimidating experience that most employees go through at least once in their working lifetime.
You may ask yourself: what did I do wrong? Why is this happening to me? Sally is a much worse worker than I am. Why is she still here and I’m not?
While that may be true, it is almost irrelevant to analyze your termination. Your boss can fire you for absolutely no reason, provided they do so properly.
However, unlike Just Cause Terminations, if your employment is terminated for no reason, your termination is said to be “wrongful”, and as such, you are entitled to what is known as a reasonable notice period or payment in lieu of notice.
The rationale of a termination package is to allow you to have enough resources, i.e. time and money, to search for alternate and employment of a similar pay or stature.
What is a Termination Package?
A termination package is a sum of money, paid in lump-sum or by the continuation of salary and benefits for a certain period, in exchange for a Full and Final release.
What is a Full and Final release?
It is a document that an employer gives their terminated employee and asks them to sign it, in which they get the employee to agree not to take the employer to court for any matter related to the termination.
How much Pay in Lieu of Notice are you owed for without cause terminations?
The first document a court will look into in order to determine your notice period is your employment contract.
Often, employers try to limit their employees’ termination notice periods to the minimum entitlements under the Employment Standards Act (“ESA”). However, they are not always successful.
Employers are not allowed to contract out or waive the minimum entitlements under the ESA. These standards represent an absolute minimum of rights which cannot be waived by the express or implied terms of an employment contract.
If employers attempt to undermine those minimum ESA entitlements, they may find themselves responsible for common law entitlements, which are often much higher than statutory entitlements.
What is the common law?
The common law is the law that is outlined by judges. It is their decisions on cases that may have similar points to yours. The common law is a good place to look, outside the legislation, to determine your rights.
An employment lawyer should review your employment contract to see if you’ve signed away your common law rights. However, even if you signed an employment contract limiting your notice period entitlement to the statutory minimums under the ESA, an employment lawyer may be able to find ways to bypass the employment contract and go after your common law entitlements.
To calculate how much common law notice period you are owed, the courts will look into a multitude of factors known as the Bardal factors.
The case of Bardal v. The Globe & Mail Ltd. (1960) 24 D.L.R. (2d) 140 (Ont. H.C.) is an old but very relevant case when it comes to calculating termination packages.
In that case, the court determined that one should use a comprehensive look to find out a terminated employee’s notice period or payment in lieu of notice.
Bardal factors include, but are not limited to, your age, your level of expertise, the number of years you’ve worked with your employer, and the availability of similar employment in the current labour market. This list is non-exhaustive and could include a number of other factors that your employment lawyer should include in their calculations.
If you have questions or have been terminated without cause, contact us today. We can help with reviewing and understanding your employment contract before you sign it. Our team of experienced workplace lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (866) 508-2548 or email us at [email protected] and we would be happy to assist.
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