Employment Law - FAQ (Frequently Asked Questions)

• Am I entitled to a severance package?

  In general, an employee who is dismissed without cause is entitled to reasonable notice of that termination. Thus, the employer may give the employee advance notice that the employment relationship will come to an end, and allow the employee to remain in their position until the specified date. This is referred to as working notice. In the majority of cases, however, the employer will terminate the employee immediately, and provide the employee with a payment in lieu of the period of working notice. The severance package is not a reward for the employee's past service. Instead it is designed to bridge the employee until he can find suitable alternate employment.

  Your entitlement to a severance package is dependent on many factors. We fully analyze all of the factors relevant to your case to ensure that your entitlement is protected.

• What do I do if my Employer has unilaterally changed the terms of my Employment?

  In some circumstances an employee may be entitled to a remedy against their employer where the employer made significant unilateral changes to the terms of the employment relationship. Where the employer has made significant changes the employer may have breached the terms of employment. Where this is proven to have occurred a constructive dismissal has taken place. Common examples of situations where courts have found a constructive dismissal to have taken place include unilateral changes to: salary, bonuses, commissions or commission structure , health and insurance benefits, jog titles, job descriptions, positions, and duties and responsibilities.

  If the employer has committed a constructive dismissal, the employee may have the right to terminate the employment and sue for severance pay. Determining whether a constructive dismissal has occurred is a complex matter, and every employee's situation is different. Many employees who believe they have been constructively dismissed subsequently discover (after receiving legal advice or after the court rules against them) that they were not constructively dismissed.

  If you feel that your employer has made changes to the terms of your employment that may amount to a constructive dismissal you should obtain immediate legal advice.

• How is the value of my severance package calculated?

  Many employees mistakenly believe that their right to severance pay is limited by the provisions of the applicable provincial or federal Employment Standards legislation. While this legislation is important, in most cases employees are also entitled to a period of "common law" notice that far exceeds the amounts set out in the legislation. The determination of your common law severance rights begins with an analysis of the characteristics of your employment relationship.

  In the absence of an enforceable agreement the amount of severance that you are entitled to is based on the length of notice that ought to have been given to the employee. This includes an assessment of the total compensation (e.g. salary, bonuses, options and benefits) that the employee was entitled to during the notice period. The length of notice period is decided with reference to many variables including the age of the employee, the responsibilities of the employee, the length of service, the availability of similar alternate employment, and the manner in which the dismissal occurred.

  In determining the quantum of your severance package we analyze the impact of the relevant provincial or federal employment standards, as well as the common law factors discussed above. In this way we are able to provide you with clear information about whether the severance package that you receive is appropriate for your individual circumstances.

• What is Just Cause for Dismissal?

  In general, an employee who is terminated for just cause is not entitled to receive notice of their dismissal, or severance pay in lieu of notice. Additionally, the employee may not qualify for employment insurance. As a result, occasionally employers will allege that they have terminated an employee for just cause, and use it as the basis to refuse to provide a severance package to the dismissed employee.

  Although an employer may make a just cause allegation, the onus rests with the employer to prove that the employee's conduct satisfies the strict legal test for just cause. Usually, the employer must prove that the employee engaged in serious misconduct. Common examples of just cause include stealing, poor performance, persistent lateness, conflict of interest, or breach of an employer's policy. Merely because an employer alleges just cause, does not mean that a court will ultimately agree. The courts have established very strict tests that the employer must satisfy in order to deny an employee a severance package. In our experience, and in the majority of cases the employer is unable to prove the just cause allegations. For this reason we will fully analyze the circumstances of your employment to determine whether just cause exists. If it is our opinion that no just cause exists in your circumstances, we will vigourously pursue all of your rights and interests arising from your termination.

• Should I Sign the Release?

  When an employee is terminated, the employer will often ask the employee to sign a Release, or other documentation in order to receive a severance package, or to receive the final pay cheque. Sometimes, employers will attempt to threaten or intimidate the employee into signing documents without the benefit of legal advice. At other times the employer will simply fail to fully explain the legal impact of signing documents of this type.

  Any document that you sign may adversely impact your future rights. Failure to have a Release, or other documentation reviewed before signing could result in you giving away valuable rights, and/or increased compensation. For this reason we strongly recommend that you not sign any documentation provided by your employer until such time as you have an opportunity to receive informed legal advice. At Sawers McFarlane we ensure that you fully understand the legal effect of all documents that you may be required to sign, and ensure that your rights and interests are protected.

• What if I have been Discriminated Against?

  The federal government and provincial legislatures have enacted comprehensive Human Rights legislation to ensure that the inherent rights and dignity of all people are fully respected. If you believe that your employer has discriminated against you on the basis of race, gender, religion, sexual orientation, or for another reason, you may be eligible to receive a remedy through the applicable federal or provincial human rights tribunal, or through the courts. The manner in which your human rights are protected may vary depending on whether you seek redress from the applicable provincial or federal Human Rights Tribunal, or through the courts. Choosing the right forum is an important first step in the process

  At Sawers McFarlane our lawyers are trained in all aspects of human rights law. Our experience enables us to ensure that you receive all of the compensation and protection to which you are entitled.

• What if I become disabled during my employment or after my termination?

  Employees that have disability insurance may be eligible to receive disability benefits if they are unable to work due to problems with their health. In most cases, your right to disability benefits is governed by the terms of the disability insurance policy. If your insurer has failed to pay you disability benefits you may have an action against them for breach of the insurance policy.

  If you become disabled after you are terminated you may still have the right to receive disability insurance benefits from the employer or from the insurer. The determination of who may be required to provide these benefits to you depends on many factors including when you were first diagnosed, and when your symptoms arose. The determination of your potential rights in this area is very complex.

  At Sawers McFarlane we have extensive experience pursing our clients' rights for disability benefits, and other types of insurance benefits. We strongly encourage you to contact us so that we may advise you of your legal rights.

• Should I sign a Non-Competition or Non-Solicitation Clause?

  Many employees mistakenly believe that non-competition and non-Solicitation agreements are unenforceable. Despite this common misconception, the law is clear that a non-competition or non-solicitation covenant will be enforced against an employee if the covenant satisfies the applicable legal tests. An enforceable non-competition or non-solicitation agreement can place severe limitations on an employee, and prevent an employee from earning a living in their chosen field. Despite these potential affects, our experience has demonstrated that the majority of non-competition and non-solicitation provisions are unenforceable. Nevertheless, the potential enforceability of these agreements is among the most complex, and hotly contested areas of employment law.

  For this reason, we are frequently retained to provide legal opinions to our clients with respect to the enforceability of non-competition and non-solicitation agreements. In our experience employees that fail to obtain advice about the enforceability of these agreements prior to signing them take a serious, and unnecessary risk with respect to their economic futures. We strongly encourage all employees to obtain advice with respect to these agreements prior to signing them.

• How long do I have to sue my Employer?

  There are many reasons to act quickly if you feel that your legal rights have been breached. In most cases your ability to exercise your legal rights have specific time limits called limitation periods. If you fail to take appropriate steps prior to the expiration of the limitation period, your rights may be lost forever. Moreover, in most cases our ability to fully pursue and protect your rights and interests is enhanced by taking immediate steps on your behalf before your case grows "cold".

  If you have been terminated, or feel that your employment rights have been breached by your employer, call us immediately to ensure that your ability to pursue your remedies is not prejudiced.

• What happens if I find a New Job Quickly?

  Upon termination all employees have an obligation to mitigate their losses by taking reasonable steps to find alternate similar employment. Any new employment that you find may impact your entitlement to receive a severance package from your former employer. In some cases it may be prudent to delay the search for employment for a limited time while issues related to your severance offer are being resolved. In some cases, employees that find new employment very quickly jeopardize their ability to obtain a severance package.

  If you have been terminated you should obtain informed legal advice prior to accepting any new position. This will ensure that you are fully aware of the impact that your new employment may have on your entitlements.

• What happens if my Employer is taken Over?

  Globalization in the modern economy has resulted in numerous mergers and acquisitions between companies in recent years. Often the mergers or acquisitions will result in many employees losing their jobs at the same time. At other times employees are moved to new or modified positions within the new company structure. In certain circumstances the merger or acquisition may amount to a wrongful termination or a constructive dismissal.

  In our experience many employers fail to fully explain the impact of a merger or take over upon the legal rights of the employees that depart, and the employees that remain. At Sawers McFarlane our extensive experience in this area enables us to provide advice and counsel to all employees about their rights should their employer be merged or acquired.