Losing your job is one thing. Being shown the door for no reason after years of loyal service is another! Not only does the experience affect your financial stability but your career path as well. Did your employer have just cause to terminate your employment? Can he do so without paying you fair compensation?
More often than not, the answer is no! Labor laws are designed to protect employees from wrongful termination and discrimination. What type of compensation are you entitled to in the event of an illegal dismissal? Can you determine the right amount that your employer should pay you?
JuriGo can help you establish the correct severance pay after a wrongful termination by your employer. Several factors impact the amount granted so it is best to consult an experienced lawyer for advice that will be tailored to your situation.
Was your dismissal unjustified? Distinguish termination, dismissal and layoff!
Before getting on your high horse by claiming severance pay for unjustified dismissal, you have to actually been fired... This may seem strange, but the reality of labor law requires you to distinguish termination from dismissal and layoff. Not only do these terms differ but the consequences, as well as the resulting compensation, also differ.
Termination, for its part, consists of the permanent ending of the employer-employee relationship. To terminate an employee, however, the employer must have just and sufficient cause which must be related to the behavior, performance, or incompetence of the employee. Moreover, the employer will be required to provide an appropriate notice to the employee depending on the length of time spent at the job.
Dismissal, on the other hand, also consists in putting an end to the employment relationship permanently but this time, the reasons are not related to the behavior or performance of the employee but rather to economic reasons specific to the company. Take for example the case of a recession, low income, and even approaching insolvency. In addition, technological obsolescence is also part of the grounds for dismissal; the example of robot cashiers illustrates this principle.
As for layoff, this is the employer's decision to temporarily suspend the provision of work without, however, terminating the contractual relationship. As a result, the employer and the employee remain linked and the latter can be called back to work at the agreed time or when the employer decides to do so. Consequently, layoff is not considered a dismissal and does not give rise to the granting of severance pay.
Only one nuance applies - when the layoff is for a period of 6 months or more; in such cases, the employer is required to give a notice of termination to the employee concerned.
Now that you were fired, was it for insufficient, unjustified or even discriminatory reasons? That's what we're going to find out!
If your dismissal was justified, are you still entitled to compensation?
Unfortunately no! At least, the indemnity will not be the same as for a dismissal without just cause or for a discriminatory cause. Under the articles of the Civil Code of Quebec, it is provided that the employer may terminate the employment contract without notice if there is a serious reason. With that said, a dismissal may be justified even in the absence of such a reason.
Take the case of an employer who dismisses an employee whose performance does not meet reasonable expectations. This is not necessarily a serious reason for dismissal such as the theft of the contents of the cash register would be, for example.
The difference between these two situations is that the latter employee will be dismissed without notice and, therefore, without a notice period. On the other hand, the employee whose performance was inadequate will still retain his right to a notice period (notice) in the form of time worked or a lump sum payment.
What are the rights of an employee with less than 2 years of continuous service?
In the Act respecting labour standards, section 124 creates a distinction between the employee justifying less than two years of continuous service for the employer and those whose duration of employment does not reach this threshold. Indeed, this section of the law alleges that an employee with more than two years of uninterrupted service may file a complaint with the CNESST if he believes he has been dismissed without just and sufficient cause. What if you don't fall into this category?
In the event that you had entered into a fixed-term contract indicating a fixed completion date, your employer will not be entitled to terminate the contract without fulfilling all of its obligations, namely by paying you the agreed salary. However, the vast majority of employees do not fall into this category and operate instead through open-ended contracts.
For the latter, the Civil Code of Quebec provides that the employer is entitled to terminate the employment contract at any time provided that he gives the employee notice in the form of a notice period, often called "two weeks’ notice". However, the duration of this notice is bound to vary according to the duration of the employee's employment and whether or not he is subject to the Act respecting labour standards.
The employer’s only limitation is the absence of a discriminatory reason! Indeed, regardless of the duration of the employee's employment, an employer will never be justified in dismissing him for any reason of discrimination such as race, being pregnant, or exercising a right provided for by the law.
More than 2 years with the same employer? You have specific rights to be respected!
Have you been employed by the same employer for more than two years? This is great news for negotiating your severance package! Indeed, the Act respecting labor standards provides that an employee cannot be dismissed without just and sufficient cause after two years of continuous service.
After two years of continuous service, what will constitute just and sufficient cause? Some reasons will be obvious and indisputable. Take the example of theft, fraud, and breach of trust. That being said, other more subtle reasons can be invoked, including poor performance, absenteeism, chronic tardiness, etc.
The just and sufficient reason must, however, have been discussed with the employee! Indeed, the law does not allow an employer to suddenly become fed up with an employee's performance; the shortcomings of the latter must have been relayed to him in the past to invoke just and sufficient reason. In addition, the employer must have given the employee the chance to recover and provide him with the necessary means to do so.
As a recently terminated employee, these criteria work in your favor in obtaining sufficient severance pay since many employers overlook this aspect. However, you must act quickly because the LNT provides for a maximum period of 45 days to file a complaint with the CNESST for such a dismissal!
Employee or senior manager: what is the difference in terms of notice of dismissal (period of notice)?
How important is your position in the company after being fired? It is considerably important and you will see why! In the same way as for the duration of employment, the Act respecting labour standards creates different protections for the employee than the manager, with the latter not being protected by recourse to section 124.
However, employers are quick to qualify a recently dismissed employee as an "executive" simply to deprive him of his recourse against a dismissal without just and sufficient cause.
So how do we distinguish a manager from an employee within the meaning of the ALS?
It is important to mention that the qualification of “senior manager” remains a relevant issue. The courts have, however, agreed to extend the definition of manager not only to senior executives of the company but also to those who have decision-making powers and actual management of the company.
There is no point in having a high-ranking title to fit into this definition; it is enough to have a functional authority within the company. This authority can take the form of control of work teams, maintenance of budgets, authority to hire and fire employees, etc.
What is the impact of being qualified as a senior manager?
Mainly the fact that they are excluded from the protections conferred by the Act respecting labour standards! Subsequently, this implies that the system for implementing periods of notice provided for in the Act respecting labour standards does not apply to them. This system provides for the length of notice under the law that an employee is entitled to depending on his or her length of employment.
What recourse do managers have against their ex-employer for wrongful dismissal?
Managers must fall back on the provisions of the Civil Code in order to obtain compensation. Although they are not left completely unprotected, it is important to mention that the protections of the Civil Code are clearly less favorable to employees than those of the Act respecting labour standards.
Have you been the victim of a dismissal without just and sufficient cause? Here's the procedure to follow!
Did you just walk into the boss's office and the news of your dismissal was announced to you? A thousand and one questions must be running through your mind and that's perfectly normal. That being said, it is important not to jump to hasty decisions following a dismissal that could compromise the granting of your compensation.
Here are the steps to follow to maximize your chances of obtaining the compensation that you believe is justified!
Do not sign anything on the spot and under pressure. Following the announcement of your dismissal, your employer may give you a document containing an offer of severance pay conditional on your waiver of all recourse against him. Whether he gives you a deadline for acceptance or not, do not sign anything before consulting a lawyer who can give you good advice!
Consult a lawyer immediately. When it comes to a dismissal, limitation periods can be short, especially when you are a long-time employee subject to the Act respecting labour standards. It is, therefore, all the more important to obtain the appropriate legal advice in order to evaluate your options.
Determine whether you are a manager or an employee. The distinction between your status as a manager or an employee will determine whether you are subject to the Act respecting labour standards or the much less advantageous system of the Civil Code of Québec. As managers are excluded from the application of labour standards (with certain exceptions), your lawyer will analyze the nature of your position in the company in order to draw his conclusions.
Take the appropriate action with a labour lawyer! It is his job to assess what remedies are appropriate in order to maximize the compensation you can obtain. Trusting this legal expert is your best bet for getting fair severance pay!
The criteria for setting your severance pay or notice period!
Last but not least, determine the amount of your severance pay! How much compensation can you get, that is the question, isn’t it? In the case of an unjustified dismissal, you can always turn to the CNESST by using article 124 in order to claim reinstatement, compensation for lost wages, or even damages in certain specific cases.
However, you can also turn to a lawyer who will try to negotiate a severance package directly with the employer, taking into account the length of your employment, the duties performed, and the reason cited for your dismissal.
In the case of a justified dismissal of an employee subject to labour standards , it will be necessary to fall back on section 82 ALS. This same article stipulates that the notice of dismissal must be one week for an employee who has worked for the same employer for less than a year, two weeks for a period of employment of 1 to 5 years, 4 weeks for a duration of employment of 5 to 10 years, and finally, an 8-week period of notice for an employee who has been employed for more than 10 years.
Does the Act respecting labour standards not apply to you? I t is the Civil Code that will come to your rescue by stipulating that the period of notice given to the employee must be “reasonable” and must take into account the circumstances of the job as well as its duration.
Is mediation the solution to negotiate fair compensation with your employer?
Of course, going to court isn't the only option when it comes to a dismissal and severance pay. On the contrary, mediation, a solution that is increasing in popularity, is an alternative of choice to litigation, especially in terms of severance pay!
Proof is that the CNESST also offers such a service at which time an impartial mediator will try to reconcile your interests with those of the employer to try to find an ideal solution.
But what are the advantages of mediation between the employer and the employee compared to other so-called “traditional” solutions? Here are a few that might convince you of its merits.
Allows you to negotiate a fair and amicable agreement. Mediation requires that the parties participate in the sessions willingly and in good faith in an attempt to find an equitable solution. Unlike litigation, this spirit of collaboration promotes the negotiation of fair compensation on both sides and limits animosity**.**
Prevents litigation from arising and saves costs. The litigation route is often very expensive and requires adding up lawyers' fees, court costs, not to mention the many delays incurred. Litigation is an avenue that is best avoided to negotiate satisfactory compensation, both on the employer and employee side.
Explore the option of mediation by consulting a labor lawyer referred by JuriGo! This expert will advise you and steer you in the right direction.
JuriGo helps you get severance pay when you find your lawyer!
As an employee, you have rights that your employer (or ex-employer now) has a duty to respect! When you are dismissed for your services with a letter of dismissal, you are perfectly justified in claiming fair severance pay especially when this dismissal is made without just and sufficient cause!
Fortunately for you, JuriGo can refer you to qualified labour lawyers in your area who will be able to negotiate for you a severance package that meets your expectations.
It is really simple to get in touch with these lawyers. Just fill out the form at the bottom of the page in order to be connected to a lawyer near you for free and no obligation!