Employees are usually terminated with two classifications. Either the termination is with cause or without cause. The latter is usually due to a restructuring or lack of work. If your termination of employment was without cause, ensure that you apply to collect employment insurance (“EI”) benefits through Service Canada’s online portal. If there is a delay beyond four weeks, you may lose EI benefits. EI was instituted for the purpose of ensuring that terminated employees are covered until their next job.
If you had a “with cause” termination, obtaining EI can be difficult. However, despite this, it is best to apply given the high threshold to establish a just cause termination. Under the Employment Standards Act, 2000 (“ESA”), the threshold to terminate for just cause must show that the employee engaged in “wilful misconduct”. This occurs where an employee has exhibited serious wrongdoing or has breached trust and loyalty with their employer.
To be eligible for EI benefits you must have been employed in insurable employment, lost your employment through no fault of your own, been without work and pay for at least seven consecutive in the last 52 weeks, have worked for the required insurable hours in the last 52 weeks or since the start of your last EI claim (whichever is shorter), are ready, willing and able to work and you must be actively looking for work. After you apply for EI following a termination due to misconduct, a government agent will call the employer to gather information about the reasons for the termination. The employer will be obligated to justify why they terminated the employee which may require evidence of a breach of contract, employment condition or policy.
If you resign from your employment you are not entitled to receive EI benefits unless there was provable just cause for leaving your employment. These may constitute a constructive dismissal or incidences where there was harassment, discrimination or dangerous working conditions.
The most common way to prove that you lost employment through no fault of your own is through your Record of Employment (“ROE”). Employer’s must issue an ROE each time there is an interruption in earnings which is defined as the period of time an employee has had or anticipates seven days with no insurable earnings from their employer.
Part 16 of the ROE allows the employer to state a reason for why they are issuing an ROE which will either be because they terminated your employment or laid off an employee. If you lost your job due to a “Shortage of Work” or a temporary lay-off, Code A will be used. If you were terminated, the employer will use Code M for a dismissal in Block 16. In Block 18, your employer will specify if your termination was for cause or without cause. A description is not necessary. However, if your ROE is marked with Code M, Service Canada will likely require that you fill out a survey about your termination allowing you to provide reasons. Service Canada will then contact the employer to determine the correct code. If your application for benefits is denied, file a Request for Reconsideration within 30 days. This is another chance for you to give reasons why your termination did not amount to wilful misconduct.
The rate for calculating benefits is 55% of the average of your highest weekly earnings for the previous year. As of January 1, 2019, the maximum insurable earnings for which you can obtain EI benefits is $53, 100. This means the maximum benefit you can receive is $562 per week. You can receive benefits from 14 weeks to a maximum of 45 weeks depending on the unemployment rate in your region at the time you file your claim and the amount of insurable hours worked during the last 52 weeks.
If you are seeking a Toronto employment lawyer to help you understand your EI rights in the event of a wrongful termination, contact Stacey Ball at 416-921-7997 extension 227.