5 facts to know about wrongful dismissal in Ontario
Diane Peters, Special to CP24.com
Published Wednesday, April 5, 2023 6:00AM EDT
Last Updated Wednesday, April 5, 2023 10:01AM EDT
Being let go from your job is rarely an enjoyable experience. In many cases, to add insult to injury, the dismissal isn’t done properly.
Employers don’t often follow the correct protocols, meaning that a large number of employees are wrongfully dismissed when they are fired or laid off.
“Many people working in Ontario don’t know what a wrongful dismissal is,” says employment lawyer Lior Samfiru, co-founding partner of Samfiru Tumarkin LLP.
It’s important for every employee to understand what it means to be wrongfully dismissed and what to do when it occurs. Here are five facts you must know.
A wrongful dismissal is related to severance, not the reason for termination
A wrongful dismissal occurs when you are fired or lose your job, but aren’t given the correct amount of severance pay from your employer.
“This continues to be one of the most misunderstood concepts in employment law,” says Samfiru, who hosts Ask a Lawyer on CP24, a weekly program focused on setting the record straight about employee rights across the province.
“In a termination ‘without cause’ a company can fire an employee for any reason – even if that reason is insincere or incorrect.
What matters is how much compensation that person receives when they are shown the door.”
In Ontario, a full severance package can be as much as 24 months’ pay. The amount of compensation you are entitled to is calculated using several factors, including age, position at the company, length of service and your ability to find new work.
“To get a general sense of what you might be owed, use my firm’s free Severance Pay Calculator,” says Samfiru.
“If you don’t, you could be leaving tens of thousands of dollars on the table when your employer shows you the door.”
Samfiru, whose experienced team has secured fair severance for tens of thousands of non-unionized clients in Ontario since launching his firm in 2007, notes that there are some situations when you can’t be fired.
“It’s illegal for your employer to let you go because you’ve taken a parental or medical leave, or because of your race, gender or age. If that happens, you are owed human rights damages on top of your severance pay.”
A termination for cause often results in a wrongful dismissal
What an employer considers just cause for termination often falls short of meeting the legal definition as defined by provincial legislation and our courts.
In fact, when an employer incorrectly applies termination for cause, it typically results in a wrongful dismissal.
“A true termination ‘for cause’ happens when an employee commits serious misconduct,” says Samfiru.
“It’s not just behaviour the employer doesn’t like – it has to be truly egregious, and the transgression must be documented. In this situation, a company doesn’t have to provide a severance package, and the employee can’t access Employment Insurance benefits.”
He adds that most non-unionized workers who are fired for cause are still entitled to severance pay because they don’t meet the conditions for this type of dismissal.
“I see this all the time. In order to terminate staff for cause, employers need to prove progressive disciplinary measures were applied and that a lesser punishment wouldn’t be acceptable, which is very hard to do,” says Samfiru.
“My firm regularly resolves wrongful dismissal claims and we have helped numerous clients secure the compensation they deserve.”
A major change in your job can lead to a severance package
If your employer suddenly changes where you work, what you do, how much you get paid or when you work, without your consent, it's a problem – and likely a breach of your employment relationship.
In this situation, your employer has essentially fired you without cause, and owes you full severance, which you can obtain through a constructive dismissal claim.
However, the complexities of this type of scenario are exactly why you should consult an employment lawyer before you do anything.
“It’s so important that you seek legal counsel when your employment is changed in any way,” says Samfiru.
Such claims must be pursued methodically and with an understanding of the law to prove it was indeed a constructive dismissal.
You have two years to get your full severance
“You can’t sit on this for more than two years. There are no second chances,” says Samfiru.
Under the law, two years is the firm deadline to make a claim for wrongful dismissal. That means you need to get the process underway – by contacting an employment lawyer – well ahead of the two-year mark to file the claim before the deadline.
In many cases, an employer will pressure you to sign your termination letter within a week or even a few days.
“That isn’t the deadline,” confirms Samfiru.
“Rush tactics are common among employers trying to skirt paying severance. If you sign a severance offer and return it to your boss, you can’t go back and make a claim.”
A wrongful dismissal lawyer can help
For non-unionized employees, it’s in their best interest to contact a lawyer when they lose their job or think they have been wrongfully dismissed.
Instead of going it alone, Samfiru recommends taking advantage of experienced, professional help to ensure your rights are enforced and you get what you are owed.
“We’re here not just to advocate for you, not just to advise you, but to navigate the process on your behalf. Our aim is to reduce your stress and produce results as smoothly as possible.”
His firm’s success when observing this core concept is reflected in the thousands of positive online reviews left by past clients in Ontario, Alberta and B.C.
He adds that you shouldn’t go to the Ministry of Labour in Ontario for help.
“The government can only get you the minimum amount of severance pay,” he says.
“A wrongful dismissal lawyer at Samfiru Tumarkin LLP will go after a complete and comprehensive severance package. Once you file a claim for severance through The Ministry, you lose the ability to turn to a legal professional for help.”
In addition to securing the compensation you deserve, Samfiru claims employment lawyers usually resolve these matters without going to court.
“The reality is most employers know that it’s going to be expensive if things drag on. When my firm gets involved, companies tend to settle.”
Contact employment lawyer Lior Samfiru, co-founding partner at Samfiru Tumarkin LLP, to get the advice and compensation you need by calling 1-888-861-4555, emailing Ask@EmploymentLawyer.ca or filling out an online contact form.
His law firm specializes in employment law in Ontario, Alberta and B.C., and long-term disability claims across Canada (except Quebec).