When an employee is terminated, they are often owed a severance package unless the termination was a result of misconduct that justified a dismissal. Where the severance package contravenes minimal entitlements under the law, an employee has two options: they may seek assistance from the Labour Board that will appoint an employment standards officer to oversee the case, or they may seek assistance from an employment lawyer.
An employment standards officer would ensure that your employer provides the entitlements that are mandatory under law, and will act as a neutral third party. This option may be appealing because there are no costs involved to the employee and the appointed officer has the authority to make decisions and order resolutions that are legally binding. The maximum weeks of pay and benefits in Ontario employees are entitled to be 8 weeks, providing that the employee has 8 years of service. Generally, each year served entitles an employee to a week in wage and benefits paid. Employees of 5 years of service with employers whose payroll is over 2.5 million are also entitled to an additional severance payment. If you are an employee that has just started your career and are not at a senior level, it may be in your interests to seek assistance from an employment standards officer.
If seeking services from an employment lawyer, employees may be entitled to common law ‘notice pay’ which is often more than the minimal entitlements under the law. Notice pay is an estimate of the time that an employee needs to find comparable employment, which entitles an employee to the wages and benefits that would have been earned during this time. As a result, notice pay considers many other factors such as age, skill level, salary, an employees position and responsibilities, the economic conditions, and more. Providing there are no limitations to your common law notice entitlement within your contract of employment, those in senior positions may find it well worthwhile to fight for common law notice instead of minimal entitlements under the law. Often, common law notice will entitle senior and high skilled employees too much more than entitlements provided under minimal standards law. When in doubt, it is always best to seek the advice of an employment lawyer, as contract language, position and duties, conduct during dismissal and many other factors may play a role in determining the amount of an entitlement. This requires an employment law expert’s advice and analysis.
An employee seeking more information may want to read about termination clauses and contracting out, and constructive dismissal which is covered under many topics within this blog.