Employment & Labour

Terminated employees should seek legal advice promptly

By Tony Poland, AdvocateDaily.com Associate Editor

Employees who accept the terms of a termination agreement without seeking legal counsel are doing themselves a disservice, says Vaughan employment lawyer Dennis Ovsyannikov.

Ovsyannikov, an associate with Zeilikman Law, says even if you signed an employment contract, you may still be entitled to more than the company is offering when you are being dismissed.

“Many employees make the mistake of simply accepting what the termination clause says, but it is not always enforceable,” he tells AdvocateDaily.com. “There are a number of reasons it may not be — usually it’s because it is not compliant with the Employment Standards Act (ESA).”

One of the main reasons people leap before they look has to do with human nature, Ovsyannikov says.

“It happens all the time. A termination is usually a surprise and a shock,” he says. “People should definitely take a couple of days to reflect upon the situation.

“It would be advisable to set up a consultation with an employment lawyer relatively soon. It doesn’t have to be the same day or the next day post-termination but generally within a few days.”

Ovsyannikov says a dismissal is essentially wrong in law if the employee does “not receive pay in lieu of notice or appropriate notice of termination.”

“They would need to receive all of their rights under the ESA,” he says.

Ovsyannikov notes that an employee dismissed for cause is not eligible for Employment Insurance benefits or a termination package, and that it’s incumbent on the employer to lay out a solid case for firing the employee.

If an employee is struggling with deadlines or performance of their tasks, for example, the company should put them on a performance improvement plan in an attempt to solve the problem, he says.

If corrective action is necessary, the employer is often expected to use progressive discipline, which would “generally contain a verbal warning, a written warning and possibly a suspension before a termination,” Ovsyannikov says.

If an employee is accused of misconduct, the employer should conduct an investigation “that is fair and impartial and allows the employee to provide his or her version of events,” and offer an explanation, he says.

“If there was a problem with the investigation or a lack of progressive discipline, sometimes there’s an argument that the termination is not justified, that the person was fired without sufficient cause,” Ovsyannikov says. “If there’s no cause, that triggers the employer’s obligation to provide a package to compensate the employee.”

Each case is unique and needs to be evaluated on its merits, he says.

“On the other hand, when you’re dealing with certain types of misconduct, such as fraud or misrepresentation, that is a different issue. An employer usually does not need to use progressive discipline in instances where an employee is guilty of theft, for example,” Ovsyannikov says.

If an employee has been terminated, it is vital to determine if they previously signed a contract of employment, he says.

“The most important clause in the contract would be the termination clause. That provision sets out what the rights the employee has upon being terminated,” Ovsyannikov says. “It sometimes outlines the specific formula that determines what the severance package should be.

“If there is a written contract, it must be carefully reviewed by an employment lawyer because some contracts and termination clauses don’t comply with the ESA or with common law, and therefore, are not enforceable.”

Ovsyannikov says employment laws evolve, and a lawyer will consider several factors that a terminated employee might overlook.

“We sometimes need to explore whether the employee has been discriminated against, if they were harassed or subjected to a toxic work environment,” he says.

Ovsyannikov gives another example where an employee is induced to leave secure employment of many years to join a new employer.

“If they are terminated shortly after starting the new job, it is possible to argue the years of service they completed at the prior job could count toward the new employer’s legal obligation to compensate the person,” he says.

“There can be complicated legal issues and situations where a consultation with an employment lawyer would be crucial.”

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