TERMINATION OF EMPLOYMENT WITHOUT CAUSE

STACEY REGINALD BALL

82 SCOLLARD STREET TORONTO, ON, M5R 1G2

Call: (416) 921 7997 Ext.225     Email: srball@82scollard.com

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

SIGNING TERMINATION PAPERS

Can the Ministry of Labour Help You if You Are Terminated Without Cause in Toronto?

The Ministry of Labour can help employees who are terminated without cause. However, they can only help recover your minimum entitlements to severance pay as per section 57 of the Employment Standards Act. Most employees will get significantly more notice with the common law, which the Ministry of Labour cannot assist with. The Ministry of Labour is not the best route for obtaining a fair severance package.

Employment Insurance While Terminated Without Cause

In most cases, employees who are terminated without cause can apply for Employment Insurance (EI). This is a form of temporary support to workers who have lost their jobs, but the person must meet certain qualifying conditions. If you would like to find out more about EI, your eligibility or other support benefits, please visit the Government of Canada website here.

Signing Termination Papers Before Leaving

An employee terminated without cause does not need to sign the termination papers before leaving. Most termination letters will be accompanied by a deadline. However, deadlines can be extended when reaching out to a lawyer to assist the dismissed employee in reviewing the package to ensure its fairness. It is important to note, that if you do not sign your termination papers before the offer expiry date, your legal rights do not expire with it. Terminated employees have two years to pursue their legal rights to obtain a better severance package than what was originally offered.

CONSULTATIONS

ADDITIONAL ARTICLES ABOUT EMPLOYMENT LAW

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Canadian Employment Law

Canadian Employment Law

Mr. Ball is the 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

Beijia Zhang
Beijia Zhang
21:41 09 Apr 23
Stacy helped me with my case with my previous employer. I have to say that Stacy is the best lawyer I ever met. He worked incredibly hard on my case and helped me fight over the wrongful dismissal, eventually he solved my issue and we settled at a very good deal. I was super impressed by his professionalism and integrity, plus he has passion towards what he is doing. Stacy is the best of all! One of a kind!!!!!!!!
R Cooray
R Cooray
19:11 04 May 23
Stacey and his amazing team did a fantastic job with my case. Their professionalism and many years of experience helped me to settle my case. Stacey has written some of Canadian employment law. I would highly recommend to anyone to seek advise before signing any documents.
Marion Gordon
Marion Gordon
10:27 13 Jul 23
Stacey Ball fought hard in my wrongful dismissal case and we came out ahead. I am very happy with him and his team. I strongly recommend him if you have a wrongful dismissal case.
Wilma Carlson
Wilma Carlson
17:43 07 Jul 23
Stacey's professionalism and strong communication skills helped me feel informed and reassured throughout the entire process. Thanks to his tenacity and unwavering support, I achieved a successful outcome that I am truly grateful for.
Sharon Smerek
Sharon Smerek
18:28 14 Jun 23
Stacey R. Ball has bar admittance in British Columbia, Alberta, and Ontario. Will give excellent advice, and if you have a case , he will proceed on your behalf . Stacey Ball is known as the best employment lawyer across Canada.
PATRYK Szpindler
PATRYK Szpindler
11:22 03 Oct 23
Working with Stacey Ball was the best decision for my employment-related case. He was responsive to my questions, addressed all my concerns promptly and, most importantly, secured a fair resolution. Thanks again!!
Pilar M
Pilar M
11:19 03 Oct 23
Stacey R. Ball and his team represented me in my wrongful dismissal case. They exhibited a solid grasp of employment law and guided me through the legal proceedings. They were very diligent, especially in updating me on the status of my case. I really appreciate what they've done for me.
Hanan Wahib
Hanan Wahib
15:16 22 Jan 24
I am very grateful for the outstanding job that Stacy Ball and his team have done.. I want to thank you Stacy for your exceptional professional expertise and unwavering support throughout my case. Your dedication, knowledge, and genuine compassion made a significant impact on the positive outcome.I am grateful to have encountered you both as a lawyer and as a person of great humanity.
Lisa Joslin
Lisa Joslin
20:07 30 Jan 24
I had the pleasure of working with Stacey Ball and his assistants. From the start to the finish, my experience with them was nothing short of outstanding.Stacey possesses an in-depth knowledge of employment laws and regulations. His expertise was evident as he navigated through my case. He took the time to understand my situation, ensuring that I felt heard, understood, and supported throughout the entire process.Communication was clear, prompt, and thorough, making a stressful situation more manageable.I highly recommend Stacey R Ball for anyone seeking expert employment law guidance. Overall, my experience was exceptional, and I am so very grateful for the positive resolution.
sean hogue
sean hogue
22:05 30 Jan 24
I recently used Stacey to resolve an employment issue and was very pleased with the result. This is the second time I've engaged his services over the years. Stacey is the consummate professional, extremely knowledgeable and I'm thankful for his skillful representation. I have also recommended Stacey to others who have experienced the same results.
Melanie Kirkpatrick
Melanie Kirkpatrick
17:34 04 Apr 24
I would highly recommend Stacey Ball. If you're seeking an employment lawyer who is not only highly skilled but also genuinely cares about their clients, look no further than Stacey Ball. He is simply the best in the business!I must also applaud his outstanding assistant, Amy. With Amy's proactive communication, together, they form an unbeatable team!
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