Whether you are an employee or an employer, there will be times when the workplace is a challenge for all. Understanding employment law can be the key to navigating these complex issues. Read this blog to discover at what times it may be crucial for an employee to contact an employment lawyer.
When should an employee get an employment lawyer?
1. When you have been fired.
If you are an employee in Ontario and you have been fired (with or without cause), you should approach an employment lawyer. The first thing an employment lawyer can do is review the circumstances of your wrongful dismissal as well as review your employment agreement or contract with your employer. Upon review, the employment lawyer can determine if your employment agreement contains a valid termination clause and if you are entitled to severance or termination pay upon dismissal. An employment lawyer can advise you of your legal rights upon termination and help you take legal action, if necessary
2. When you have been “laid off.”
It is our experience that most people who were “laid off” were not legally laid off and they were dismissed and are owed termination and severance pay from their employer. So, firstly, it is important to note that absent an enforceable contractual term in the employment contract, an employer cannot just inform the employee that there is no more work available to them and, as such, that at a certain future date the employee should be able to continue with their job once the workload has increased.
So, regardless of whether the employer has advised the employee that they were fired, dismissed or “laid off,” the employer must provide to the employee either written notice of the termination, pay in lieu of written notice of the termination or a combination of notice of the termination and pay and they should approach an employment lawyer to assist them in enforcing their legal rights upon termination.
Do you want to learn more about layoffs? We have written about layoffs quite a bit because not only is it an important area of employment law, but it is also confusing to many. To find out more, read our articles “Layoffs, layoffs, layoffs…,” “Laid off from your job?,” and our guide simply titled “Laid Off?”.
3. When you have been constructively dismissed.
In Ontario, constructive dismissal occurs when the employee’s fundamental terms of employment are changed unilaterally by the employer and when these changes are not insignificant.
There are several common ways in which constructive dismissal can occur. Examples of constructive dismissal include but are not limited to the following scenarios:
- A reduction in pay.
- A reduction in benefits.
- A change in an employee’s job duties or responsibilities.
- An increase or decrease in workload or hours.
- A demotion.
- A transfer or new work location.
- Harassment, discrimination, unfair treatment, toxic work environment or bullying.
- An unlawful lay-off.
- Suspension, threats or other unjustified discipline.
Employees should not wait too long before claiming that they will not accept any significant unilateral change to their employment terms. For instance, if the employer has reduced the employee’s pay or they experienced a demotion at work, the employee needs to speak up in a timely manner and refuse to accept these changes to their terms of employment. If the employee waits too long to claim constructive dismissal and continues with their job, the employer may retort that the employee has accepted the new terms and acquiesced to the change.
Similarly to when an employee has been fired or “laid off,” once the claim for constructive dismissal has been made then the employee will generally claim termination and severance pay. Depending on the circumstances, the employee may also be entitled to punitive and general damages. Again, it is important to approach an employment lawyer so that the lawyer can review your case, see if your set of circumstances amounts to constructive dismissal and then guide you on what actions you can take to protect your legal entitlement to compensation.
For more information about constructive dismissal, please see:
- Can My Employer Make Changes to My Job Without My Consent?
- Forced to Resign? Understanding Constructive Dismissal
- What You Need to Know About Constructive Dismissal
4. When you are being harassed or bullied at work.
You should contact an employment lawyer if you have been harassed or bullied at work. This is because constructive dismissal can be triggered when an employee experiences bullying or harassment while at work. This will allow the employee to claim from the employer full termination and / or severance pay in addition to other possible damages stemming from the harassment regardless of whether the employee quit or resigned. The law in Ontario is that in cases of bullying and harassment, the employee could have been forced to quit as it may be unreasonable for them to continue to work under those toxic working conditions.
For more information about workplace harassment, workplace bullying or a toxic work environment, please review:
5. When you are being discriminated at work.
Discrimination can manifest in a variety of ways at the workplace. There are certain prohibited grounds of discrimination (such as age, race, sexual orientation, gender expression, family status, disability…etc) under Ontario’s Human Rights, Code, 1990.
An employee who believes that they are being discriminated at work should talk to an employment lawyer about these issues. An employment lawyer can assist the employee in figuring out what their next steps should be. For instance, an employment lawyer can provide legal advice, assist the parties in determining a solution or even help to prepare workplace policies or other documents to try to avoid these concerns moving forward. The employee may also bring a human rights complaint or a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and general damages.
If you would like to find out more about workplace discrimination, you may choose to read some additional blogs, such as “Accommodating Mental Health in the Workplace” and “Age in the Workplace.”
Do you need more information?
It is very common that an employee finds themselves in a situation where they have been fired, laid off or discriminated at work. You should approach an employment lawyer to review your own case and help you figure out what steps to take to ensure that your employment rights are protected. Failing to reach out to an employment lawyer may result in your failing to obtain your full legal entitlements to things like severance or termination pay. Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule your own confidential consultation with one of our employment lawyers.
