Termination of employment without Cause

STACEY REGINALD BALL

82 SCOLLARD STREET TORONTO, ON, M5R 1G2

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STACEY REGINALD BALL

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As an employer, you can generally terminate an employee in two situations: (1) for “just cause” or (2) without cause.

TERMINATION PROVISIONS

Just Cause

In the first case, when an employer dismisses an employee for “just cause”, the employer must have a legitimate reason for the termination, as the employee will not receive any termination or severance pay. Canadian employment law requires a very high standard to dismiss an employee for just cause. Generally, there must be serious misconduct by the employee (such as theft, violence, fraud, etc.) to warrant receiving no termination or severance pay.

Terminate Without Cause

However, employers can also terminate without cause, so long as the reason is not discriminatory in bad faith. Perhaps you have to rearrange your business or it’s simply not the right fit. In most cases when an employee is terminated without cause, the employer must either provide the employee with the appropriate notice of termination, or pay in lieu of notice of termination. At the very least, the employee is entitled to the minimums contained in the Employment Standards Act.

However, employees can also seek common law reasonable notice, which usually works out to a higher amount that what the Employment Standards Act requires you to pay as termination pay.

​Termination Pay

Employers are sometimes allowed to limit the termination pay that someone will receive by inserting a termination clause into the employment contract. However, in order for it to be successful, the termination clause must be carefully constructed and enforceable under the law.

If done properly, the termination provision can displace the presumption of common law reasonable notice that an employee would otherwise receive, which provides valuable savings for an employer. However, a termination provision must be unequivocal, explicit and found to be a valid term of the employment agreement for this to occur.

Technical violations of employment standards legislation like the Employment Standards Act can render harsh termination provisions void. The result of this can be very dramatic. Contracts which try to limit statutory severance to a few weeks can be declared illegal, with common law reasonable notice of several months being substituted by the court. Recent cases in this regard include decisions such as: Miller v A.B.M. Canada Inc. 2014 ONSC 4062; Wright v. Young & Rubicam Group of Companies, 2011 ONSC 4720 and Stevens v Sifton Properties Ltd., 2012 ONSC 5508. In order to be valid, termination provisions must acknowledge the minimum notice periods that are set out in the Employment Standards Act, among other requirements. General contract law principles such as unconscionability, undue influence and duress also apply to employment contracts and termination provisions.

If the provision is void and the terminated employee is to receive the common law reasonable notice, there are certain factors that the courts consider when determining the proper amount. These are commonly referred to as the Bardal factors, from the 1960 ruling in Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont. H.C. Put simply, these factors are: age, length of service, character of employment and availability of similar employment. The idea is to consider an employee’s experience, training and position and how difficult it will be for them to find comparable employment.

As an employer, you should contact Ball Professional Corporation for assistance drafting enforceable termination provisions that will not run afoul of the law. Failing to do so could mean costly (and avoidable) payouts to terminated employees.

TERMINATION PAY

CONSULTATIONS

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Canadian Employment Law

Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.

To order Mr. Ball's Canadian Employment Law please visit the Carswell Store by clicking here or on the button below.

CLIENT REVIEWS

Google Reviews

Steven Wang
Steven Wang
19:58 18 Mar 19
Stacey was the third lawyer that I had hired to represent me, after the previous two didn't achieve anything for me. Stacey is very different. He is not only the author of Canadian Employment Law with profound knowledge and experience, he is also the most efficient one, direct to the point. He is the toughest one, well known by HR people, and he takes care of his client all by himself. There is no junior lawyers under him. That's the big difference comparing with other big employment law firms on Google, where I could only meet with a young lawyer with little experience. After he spoke with me for 45 minutes, he found the best way to break through. He didn't need to ask for a lot of document and he didn't bill hours to review them. His fee structure is aligned with his client's best interest. My problem was solved very quickly with a great result, and I only have to meet with him twice and exchange some emails. He's not just a tough fighter and negotiator, he got great strategy to make a deal. He answered my emails during the holidays. He comes in the office very early, and we had a conference call at 7am in the morning when we need to make a quick decision. To me, he is the best employment lawyer, a patient teacher and a friend. I strongly recommend him to those who need help.
Aiden Nix
Aiden Nix
01:13 06 Apr 19
Stacey was super helpful and increased my settlement a significant amount. He is very busy so you have to chase him down a bit but that is minor issue compared to all of the positives. Overall if you need a good labour lawyer then talk to him right away. He is THE lawyer to go to in Ontario!Thanks Stacey!
Sergei R
Sergei R
05:01 06 Dec 18
My experience with Stacey R. Ball was very positive. His fees are reasonable and value I received for the money was outstanding. Luckily, after his advice my situation was resolved almost amicably. You will not believe how reasonable some people can become after they start suspecting you have a good lawyer. An ounce of prevention is worth a pound of cure. If you suspect you might need a lawyer in the future because of some developing situation at work, I highly recommend you wait no more and talk to Stacey.
Danny T
Danny T
18:34 26 Feb 19
Stacey has recently represented me. He’s patient, but to the point which I can appreciate. No fluff. He worked quickly and even responded during his holidays. Definitely highly recommended.
Alexa Arsenault
Alexa Arsenault
19:36 01 Nov 18
If I could give Stacey Ball 30 stars I would! Stacey was right on the “ball” when it came to my legal matter. I called his office and his efficient staff scheduled me for an appointment the next day. He’s a great listener and comes to the point quickly, confidently, and succinctly. He explained best and worst case scenarios and dealt with my matter without delay. He was successful in concluding my legal matter to my satisfaction and met all my expectations. I highly recommend Stacey for all your legal matters.Alexa
Alex McMillan
Alex McMillan
18:05 21 Apr 19
Mr Ball represented me in a wrongful dismissal case. It was quite evident from my initial consultation until the conclusion of my settlement. Mr. Ball mirrored professionalism, empathy and above all confidence. Mr Ball reviewed my case and informed me what I was entitled to and what to expect at time of settlement. I was represented diligently right up to the conclusion of my settlement. He was able to negotiate an amount that was above my expectations. I would highly recommend Mr. Ball to anyone in need of assistance in any type of employment situations. In conclusion that one of the main things that impressed me most was that he at all times puts his clients FIRST.
Daphne Rodrigues
Daphne Rodrigues
23:54 22 May 19
Stacey was my second lawyer I retained after my original lawyer felt that he would be better suited to deal with my difficult employment matter. Stacey was very direct, efficient and respectful of my time. He was tenacious in negotiations and challenged/invalidated all points the other lawyer argued. I would not have achieved my outcome without Stacey. Thank you!Daphne Scott
Kate Miller
Kate Miller
15:35 23 May 19
Stacey gave me good advice on my first consult. Super professional and competent. If I ever need employment lawyer again I would definitely come back to Stacey!
francesca V
francesca V
08:33 24 Jun 19
Stacey not only provided expert legal guidance on my workplace harassment case, but was also extremely supportive during this difficult process. I wholeheartedly recommend him to anyone facing a similar situation. Thank you Stacey.
Charlie Russo
Charlie Russo
03:03 01 Jul 19
Stacey Ball was very helpful with my employment situation, from start to finish. He answered all my questions and concerns dealing with my settlement promptly and easily explained everything. Thank you. 5 stars.
Nurissa Kanji
Nurissa Kanji
09:47 22 Jul 19
I want to thank Stacey Ball and the staff at Ball Professional Corporation. Mr.Ball's professionalism, friendliness and empathy were evident at our first meeting. We would not hesitate to recommend Stacey Ball and his team for their expertise in employment law.
dave buckley
dave buckley
03:27 31 Jul 19
Stacey Ball was a huge help for me from start to finish in a contract negotiation, and was able to very quickly identify issues and advise me on next steps. He was understanding of my situation and provided specific advice on a broad range of clauses in my contract. I would 100% consult with him again based on my experience.
Jhonattan V
Jhonattan V
04:31 02 Aug 19
After ending employment with my employer of 9 years due to actions that I felt were steps of constructive dismissal, I contacted Mr Ball to determine my employment rights. Through the whole process from beginning until conclusion, I found Stacey to be very professional and knowledgeable and would recommend him and his team as your representatives for employment law matters.
Cole Carr
Cole Carr
03:04 04 Aug 19
I met with Stacey Ball this morning for a consultation. He was incredibly generous with his advice and support in a consultation I needed. I highly recommend contacting him, even if you are unsure you will require his services - he will help you evaluate the situation and whether you need his services.
Katy M. Smith
Katy M. Smith
01:18 05 Aug 19
I recommend Stacey Ball without hesitation. I was wrongfully dismissed and Stacey worked efficiently and communicated regularly to get a great settlement. He helped make a bad situation better – you want a lawyer like Stacey on your side!
Nurissa Kanji
Nurissa Kanji
09:47 22 Jul 19
I want to thank Stacey Ball and the staff at Ball Professional Corporation. Mr.Ball's professionalism, friendliness and empathy were evident at our first meeting. We would not hesitate to recommend Stacey Ball and his team for their expertise in employment law.
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