Termination of employment can be very stressful and have negative consequences on your daily well-being and that of your family. It can be a confusing time as employees are often surprised when their job is suddenly terminated.
The first thing to understand is that there are different circumstances under which, as an employee, your employment can be terminated. The two most common situations are:
1. When your employer claims they have a reason to fire you (also known as "dismissal for cause" or "dismissal for cause")
2. When you are fired without any reason (known as "wrongful dismissal" or "wrongful dismissal")
Termination for Just Cause
Contrary to popular belief, your employer does not need to tell you why you are being fired.
However, if your employer claims to have a specific reason and your employment is immediately terminated without notice or payment, your employer must state that your termination is "cause" and provide you with the reason for termination.
Reasons for dismissal for cause
But not all grounds are adequate for a termination for cause. The reason you are being fired must be serious and intentional misconduct on your part. Common examples of termination for cause include claims that:
- you stole from the company
- You neglected your work and duties
- You were disobedient to your superiors.
- You lied or were dishonest with your employer
If your employer claims just cause to fire you without notice or pay, he must give you the opportunity to explain and respond to your claims. Most of the time, your employer can't just throw you out the door.
When an employer alleges just cause, it is the employer who must prove that the alleged misconduct caused irreparable harm to their employment relationship. For any court to accept a just cause ground, the employer must show that the misconduct was so serious that it justified the employer imposing the most serious consequence in response: full termination of your employment.
Sometimes you may have done something wrong or inappropriate, but that doesn't mean your employer can fire you. Your employer can be expected to take progressive steps in your discipline and start with less severe punishments, such as warnings or suspensions, before resorting to dismissal.
If your employer is unable to convince a court that they had cause to fire you, it means that you were fired "without cause" and may be entitled to notice of termination or severance pay in lieu of notice.
If you do not receive a reason for your termination, or if the reason is not sufficient to justify a termination for cause, you will be deemed terminated "without cause".
When you are fired without cause, your employer must notify you in advance of your dismissal so that you can continue to work and earn wages during the "notice period". Alternatively, your employer need not notify you if they instead pay your wages for the notice period, known as a pay-in-place notice.
The amount of notice or pay in lieu of notice that your employer must give you will depend on a number of different circumstances. It is important that you contact an employment lawyer as soon as possible after being informed that your job has ended in order to know your rights and entitlements.
Payment instead of notification
For example if they say January 1stcallethat your employment is being terminated and your employer is required to give you 4 weeks notice, this means that one of three things could happen:
- Your employer tells you that you have 4 weeks notice and that your employment will end on a specific date 4 weeks later.
- Your employer will tell you that your employment is ending immediately and you cannot return to work. Instead, you will receive your salary for another 4 weeks.
- Some combination of the two, for example your employer asks you to continue working for another 2 weeks and then stop working but pay you for another 2 weeks (for a total of 4 weeks notice and pay).
Continuing work after termination without cause
Often, if you are fired without cause and asked to continue working, you must do so. However, this does not apply in all situations. If continuing to work for the employer is significantly humiliating and embarrassing, you can reject the employment notice and accept payment. you should alwaysconsult an employer attorneybefore making a final decision.
In order for your employment to be terminated, you do not always need to be expressly informed that you have been fired. At theemployment law, there is a concept known as “forced dismissal”.
Constructive termination occurs when there is a significant change in a fundamental aspect of your employment that, even if your employer did not fire you, justifies treating your employment as terminated. In such cases, you may be entitled to notice of termination or pay as if you were terminated without cause.
Sometimes an employer will try to force their employee to resign to avoid paying you for the termination. The indirect dismissal law exists to protect workers when their employment situation becomes unsustainable and the worker can no longer continue working under the new conditions.
What happens when there are changes in your job?
Small changes in your work circumstances are not enough for you to constructively claim that you were fired. You cannot give up and try to receive compensation every time there is a small change in your work.
To qualify as a constructive termination, the change must be fundamental to your employment. It must affect a condition at the heart of your employment.
Some examples of constructive dismissal might include:
- A demotion to a lower position.
- A poisoned work environment caused by harassment, intimidation or discrimination.
- A change in your workplace that requires you to travel significantly more distance between your home and work.
- A major change in your responsibilities or duties.
- Base salary reduction.
Another common situation in which unfair dismissal occurs is when an employer forces aultimatum to your employee. If your employer tells you that they are going to make a significant change to your duties, but then gives you the option of either accepting the change or resigning, this may be treated as a constructive resignation, even though the employer has tried to make it appear that they have given you a choice.
What if you were given advance notice of a critical job change?
Sometimes, a fundamental change may occur and will not qualify as a constructive termination if your current employment contract at the time of the move contemplates such changes. For example, if the employment contract you agreed to when you started work said that the company might change, and it does, you cannot claim that your new longer shift constitutes a constructive dismissal.
For implicit dismissal to occur, the change must have been made unilaterally by the employer without their permission, consent or acquiescence. Just because you continue to work for your employer after a change does not necessarily mean that you are okay with the change. Many people cannot afford to resign, but they disagree when the change is made solely by the employer.
If you continue to work for your employer after a fundamental change, you must tell your employer that you do not agree with and do not accept the proposed change. It is crucial that you bring your concerns to the attention of your employer immediately. If you remain silent, there is a risk that a court will say that you have implicitly accepted the change.
Ways to raise concerns or objections to your employer when a change is made
- Tell your manager or human resources representative in a meeting that you don't agree with the change.
- Send an email or letter indicating your disagreement.
- If you are asked to sign a document relating to the change, write next to your signature that your signature should not be considered acceptance of the change. You could write something like "signed but not accepted.”
Unusual forms of dismissal and termination
When people think of wrongful termination claims, they are usually referring to a situation where someone was fired right away. However, there are other circumstances that can occur when an employee is not officially or formally dismissed, but which could end up becoming a unfair dismissal.
Other less common forms of dismissal and termination include:
- temporary layoff
- Buying and selling a business
- Stop working with notice of employment that your employer has rejected.
1. Temporary Dismissal
You often hear people say that they have been "fired" from their jobs. However, the term "dismissal" has a very specific meaning inemployment lawworld, and it's not the same as being fired, fired, or fired.
A layoff occurs when your employer temporarily stops your work without terminating your actual employment. This usually happens when there isn't enough work at a certain time of year or when business slows down, as with seasonal work. When this happens, your employer expects or expects you to be brought back to work when things get better again.
In such circumstances, your employer must make it clear that he is dismissing you and not terminating your employment. As long as your employer tells you that you are being fired and not fired, they don't need to give you a specific expected return date.
When can a layoff become a termination of employment?
However, a temporary layoff can become a termination of employment if the period of layoff exceeds what is permitted by law. There are two important time frames to consider in layoff situations:
- You can be dismissed for a maximum of 13 weeks in any consecutive 20-week period.
- Regardless of the time period above, you may be dismissed for a maximum of 35 weeks in any consecutive 52-week period only if any of the six special exceptions apply. These exceptions include, but are not limited to:
- You continue to receive substantial payments from your employer; any
- Your employer continues to make payments for a benefit under an employee or group insurance plan; any
- Receive or be entitled to supplementary unemployment benefits.
After the applicable layoff period expires, if your employer has not called you back to work, you may be entitled to notice of termination of employment or pay as if you were fired.
2. Buying and selling a company
If your employer sells all or part of your business to a new owner, the new owner cannot fire you without notice or without pay in lieu of notice.
When your business is sold to a new owner, your employment is considered to continue with the new owner. If the new owner wants to let you go, they must have good cause, or they must give you notice of termination or pay you the same as the previous owner would have had to pay.
Sometimes a new owner will try to force you to make changes after you acquire the business. For example, they might offer you a new role, job change, or salary change. When this happens, it's important to understand that you are not obligated to accept a lower role, demotion or pay reduction with the new owner. You have the right to negotiate your new contract. If the new owner does not accept your reasonable and fair offer, you may be entitled to notice of termination or payment in lieu of notice.
3.Withdraw with notice that the employer refuses
If you leave your job, you can give your employer a notice of employment. You may even be required to give notice in your employment contract. For example, you may need to give your employer 4 weeks' notice of your intention to leave your job.
Sometimes, when you give notice of your resignation, your employer rejects the period of work you are offering and says that it accepts your immediate resignation.
In most cases, your employer cannot ignore your notice period. If they do, they will still have to pay you for the length of time you intended to work. At other times, your employer may be authorized to waive your notice period and rightfully deny you additional pay. This is in situations where your continued work for the employer could pose a risk to their business. This usually occurs when an employee has accepted a position with a competitor. In such cases, you may have to leave work immediately without pay, even if you have offered your employer a notice of employment.