If your employment was unexpectedly terminated today, it's
important to remember it's not personal, and there is no need
to despair or panic.
You are not alone. A very large number of Canadian employees
have been dismissed during their careers, many more than once. As
result, there is no longer the stigma associated with dismissal (or
suing of employers) that existed when I began to practise law.
A microscopic number of dismissals are for performance or
conduct. Most — especially during the past several, less
economically ebullient, years — are a result of downsizings
or organizational readjustment, not performance. Being dismissed
seldom makes it more difficult to find new work and getting on with
that task is usually the best balm for your wounds.
Statistically, the vast majority of dismissed employees find
work that pays close to or greater than what they were making. If
you were selected for dismissal, as opposed to being caught up in a
wholesale termination, it is likely the job was no longer a good
fit and you are better off moving on. What is more corrosively
destructive than dismissal is viewing yourself as unproductive or
While you are not alone, how you handle the situation is
important. Dismissal is not the time to react. Instead, coolly
listen to what is being offered, make notes and be sure you
understand the details and complexities of the package being
offered. Under no circumstances should you accept it without legal
Most employers do not offer as much as a court would nor is it
what they are ultimately prepared to pay. Most employers prefer to
save money on severances and use the money for their remaining
employees. Which means, in most cases, employees can negotiate more
than what was initially offered.
Many employers offer severance based on formulas. The courts
adhere to none of them — not month per year, week per year or
any other equation. The calculation of wrongful dismissal damages
is an art, an impressionistic blend of previous decisions and
potential factors, the most important being age, position, service,
remuneration and re-employability.
Employees with a few months service could obtain as much as a
year's severance, while someone with 25 years service may get
no more than that. Beyond your legal entitlement, another factor in
determining what you are likely to obtain is the attitudinal makeup
of your employer. Some employers negotiate easily; others less so.
Some employers are generous; others, parsimonious. A sense of what
co-workers have achieved, what approach they used and how quickly
they did so are salient points in planning your approach.
If you are a month or so of severance from a satisfactory
solution, you should likely attempt to negotiate it yourself.
Otherwise, use a lawyer. Generally, those negotiating on their own
are taken less seriously because of the employer's presumption
they will not do what is necessary to sue.
What lies ahead if you sue? I heard one employment lawyer on the
radio (not CFRB) recently assuring a caller he would get her case
settled in a couple of weeks for a dramatically larger amount than
what she had been offered, without even knowing who the employer
Although less than 1% of employees who challenge their employer
end up going to trial, the other 99% settle at some stage along the
way. A case I inherited from another lawyer four weeks ago, settled
this Monday after eight years. While extraordinary, that length of
time is indicative of the vagaries of litigation.
As a general rule, the closer you get to trial, the more your
employer will pay. That is why it is in employees' interest to
move their case briskly along and not get caught up in the delays
and expense of preliminary motions and skirmishes.
Your former employer's belief that you and your lawyer will
go all the way to trial and that there is no advantage in delay is
critical in settling quickly and well. Ironically, lawyers who
specialize in settling" rather than trying cases get the worst
settlements of all. Employers pay more if they face a real risk of
being taken to trial by an experienced employment litigant than
when they are faced with a lawyer who they believe will collapse if
they only hold tough.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).