Lawyer can help negotiate a fair settlement after termination
By Kathy Rumleski, AdvocateDaily.com Contributor
Employees who resign from a workplace often leave without any kind of severance, but in some cases they may have an entitlement, regardless of which side terminated the contract, Toronto employment lawyer Ellen Low tells AdvocateDaily.com.
“If someone resigned due to conduct in the workplace that they couldn't tolerate, they may have a viable wrongful dismissal claim even though they left voluntarily,” says Low, principal of Ellen Low Employment Law.
employer's conduct may have been so intolerable that the employee really had no reasonable alternative but to leave,” she says. “That may result in an entitlement to a severance payment.”
Low says an investigation would be necessary to determine the nature of the conduct that the employee found so offensive and how often it occurred.
“We need to get a sense of the job site and the type of work that was being performed,” she explains.
There are two kinds of terminations in Ontario, Low says — one is a for cause, the other is no cause.
She says when an employer terminates a contract, the most common reason is because of a restructuring of the workplace resulting in their position being eliminated which automatically gives the employee an entitlement to notice and severance.
“An employer has the right to terminate any employee as long as they are given adequate notice or pay in lieu of that notice,” Low says.
She recommends evaluating the company's severance package with a lawyer to see if there is any “wiggle room” on the payout, based on the contract the employee signed when they began employment.
“We can also look at past cases and determine how long it might take someone to find a comparable job and that will give us a guideline when it comes to negotiating a package,” Low says.
If an employee has been terminated for cause, it also makes sense to seek a legal opinion about the possibility of a severance, she says.
“We would want to explore the conduct and determine if it is tantamount to cause in Ontario,” says Low. “You’re not just looking at the conduct itself, but also the context — not only what happened, but why did it happen.”
In litigation, a judge looks at a variety of factors and will take into account an allegation of cause, past employee conduct, length of service and contributions the employee made to the company, she says.
“I would encourage anyone who has been terminated to seek legal advice to assess whether the reason for the dismissal is in line with just-cause legislation and common law in Ontario.”
She says the Employment Standards Act has a separate cause threshold from what is covered in the common law.
"An employment lawyer can help explain the two factors and point out other options for the employee, Low says.
Another aspect an employment lawyer would want to explore in a for-cause termination is if the employee was aware of the charges against her prior to the dismissal, she says.
“If there was no discussion with the employee about what was egregious about her behaviour, that may also raise a question mark if it is a true for-cause termination,” Low says.
In some cases, she says, there could be an incident clearly at odds with the employee being able to continue employment. “The person may not need to be warned before firing because their conduct was so flagrant.”
Low says what can also be challenging for workers who are terminated is that the barometer for what is and what isn’t cause is continually in flux.
“Hiring an employment lawyer with experience in this area can give you your best and most reasonable outcome, whether or not that conduct will be cause for termination,” she says.
Low says in most cases, she's able to successfully negotiate a positive result for her clients, but is always willing to go to court if necessary.
“Much of the time I have a conversation with a client about whether his or her package is fair and reasonable,” she says.
“If it is not, we talk about steps we can take to improve the offer.”