You’ve Been Terminated. Now What?

Losing your job can be devastating and overwhelming.  But right after you lose your job, there are steps you can take to make that might lessen that devastation. Here are some tips for Ontario employees to navigate that difficult period right after being terminated, including what to do and what to avoid.

What to Do:

Consult a Lawyer before You Sign Anything.

You will have received something in writing terminating your employment and offering you a severance package. You may have been asked to sign a release before receiving some or all of that package. You should seek legal advice before signing anything because the package offered to you might be less than what you are legally entitled to.  An experienced lawyer can carefully review your package, look at any written employment agreement you have, and give you peace of mind that you are not being short-changed on your termination pay entitlement, and help you understand the implications of any release or other agreement you might be asked to sign. Taking this initial step can be the “linchpin” in securing a fair resolution to your termination.

Understand Your Rights and Check Your Employment Contract.

If terminated without cause, by default, you are entitled to common law reasonable notice. However, you might be entitled to significantly less if there is an enforceable employment agreement that limits your entitlements to Ontario’s Employment Standards Act, 2000 (“ESA”). The ESA sets minimum standards for termination notice that must be provided to you.

If there is no written employment contract or offer, you are most likely entitled to the common law reasonable notice. For long-term employees, up to 2 years compensation, and sometimes more in exceptional circumstances, may be owed. Entitlements under the common law are generally much more than the ESA minimum standards, sometimes about four times more.

Fired for Cause?

If you are terminated for just cause, you may not be entitled to common law reasonable notice but could still be eligible for ESA minimum payments.

Wilful misconduct, which is more severe than just cause, disqualifies employees from receiving both ESA and common law notice. You may face termination without any compensation if you are guilty of wilful misconduct. This includes disobedience, wilful neglect, or serious misconduct that is not trivial and has not been condoned by the employer.

Employers may sometimes allege just cause or wilful misconduct to avoid paying termination pay. In many cases, these allegations can be challenged and reversed. If you find yourself in either scenario, it is advisable to seek legal advice promptly to understand your right to termination pay. Consulting with an employment lawyer can help you understand your rights regarding termination pay and navigate the legal aspects of your situation.

Assess, Calculate and Negotiate.

If you are entitled to common law reasonable notice, your entitlement is calculated based on what is referred to as the Bardal Factors that is your age, length of service, characteristics of the position, and availability of similar employment, but also other factors that are relevant to your situation.  For instance, if you have worked as a senior manager for over 5 years, are 60 years old, and there are very limited opportunities in your field, you might be entitled to up to 12 months reasonable notice or pay in lieu.  Many termination packages start with a low offer, and you might be entitled to significantly more.

Consider Litigation.

Employees may negotiate with employers to resolve disputes, but legal action may be necessary in those cases where the employer is not prepared to negotiate.  Many people fear litigation; however, there is no need to.  As noted above, litigation is relatively rare, and most claims are settled early in the process. If needed, litigators will drive this forward.

Job Search – Mitigate Your Loss.

After being terminated, you have the legal obligation to use reasonable efforts to replace the job you lost with a comparable one, to mitigate the loss of your job.  Your lawyer should be advising you to keep a record of your efforts, in case it is later needed during litigation to prove you have not breached your duty.

Other mitigation steps could include: updating your resume and LinkedIn profile;  attending networking events, or reaching out to professional contacts can help;  exploring opportunities for re-education or skills enhancement if that would help you to find comparable employment in a difficult market.

Apply for Government Benefits.

Employees who are terminated may be eligible for Employment Insurance (“EI”) benefits. Visit the Government of Canada’s website to learn more about eligibility criteria and how to apply for EI benefits. While receiving EI can avoid gaps in your income, please also keep in mind that you may need to remit what you get after receiving your severance package or judgment.

 

What Not to Do:

Don’t Disparage.

Avoid venting your frustrations on social media or speaking negatively about your former employer. During this challenging time, it is essential to maintain professionalism.

Disparaging and defamatory comments could expose you to liability, and also cause difficulties in negotiations. If you do bring a claim against your former employer, it could also lead to a counterclaim for damages against you. Tempting as it may be to vent your frustrations, it is best to maintain a positive and constructive attitude, regardless of any negative experiences.

Don’t Rush into Accepting a Job Offer out of Desperation.

It is important to take the time to carefully consider any job offer you receive, especially if you are feeling desperate for employment. You are only legally required to accept comparable jobs, not any job.  You should also bear in mind that any income you earn might be set off against termination pay that you might be claiming from your former employer.

Conclusion

Losing your job can be overwhelming, but following these steps can help you navigate the process more effectively. Remember that you have rights as an employee in Ontario, and seeking legal advice can be a crucial step in ensuring you are treated fairly during your termination.