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Welcome everyone. This is Amer Mushtaq from You Counsel, today, we’ll talk about 10 common misconceptions relating to the Wrongful Dismissal in Canada, the law of Wrongful Dismissal in Canada. We’ll use most of the examples from Ontario, but they generally apply throughout Canada … so, these are useful across Canada.

Before we begin, just a disclaimer that this course is not legal advice, so. if you have any specific questions about the issues you’re facing you must contact a lawyer or paralegal. And if you don’t know a lawyer or paralegal, you can contact Law Society of Upper Canada Referral Service. We have provided the link here that you can use right here, or if you’re in a different province you can locate the Law Society of that province and contact them and they can direct you to a lawyer or paralegal.

Okay! Misconception number one, layoff equals wrongful dismissal. This is a common misconception we get it from our clients all the time. We get contacted by a client, a client say’s, “Amer I got laid off from my employment, I need some legal advice” and my question always is, “are you really laid off or are you terminated”? The distinction is important, the two layoff and wrongful dismissal or termination or firing or loss of employment whatever you may call it, are different terms and layoff is a completely different term. Layoff is a term that is used in Crime and Statute specifically, and it has a specific meaning, so, it’s important to understand that … so that you can understand your rights accordingly.

So where do we go? We go to Google and let’s say we type in Employment Standards Act Ontario which is right here, you go to this CanLii website that has all the statutes Canadian, Federal, Provincial. This is Employment Standards Act 2000, it relates to Ontario and let’s say if you are looking for the term, “layoff” you type in layoff, and here is one example of it. If you scroll down, you can find more information about layoffs. Lets see … so far, in layoffs, or lets say they say lay… layoff resulting in termination keep going down.

Look at this section, it’s section 56 and it talks about what constitutes termination, right? And so what constitutes termination, and if you scroll down, Section C is the employer lays the employee off for a period longer than the period of temporary layoff. And then it defines what a temporary layoff is. So, just so you understand it, “Layoff” in statute means that you are temporarily laid off from your employment, which could be one week, two weeks, three weeks, up to 35 weeks or so …. depending upon which province you’re in; and the employer has a right to recall you back to work. So, it is not a termination it is a temporary layoff and the employer has a right to bring you back, which is not termination. There are specific circumstances in which a layoff automatically becomes termination and we’ll talk about it in a separate lecture, but the important thing to understand is when you are terminated or laid off you need to understand exactly what has happened to you. But the misconception is layoff equals wrongful dismissal, which is incorrect.

Misconception number two … a lot of employees believe that an employer must give them two weeks termination notice and once that is provided, the termination is fair and they can proceed on with their lives. That’s a common misconception. Your entitlement on termination could be much, much more than two weeks. They could be more weeks, eight weeks, twenty weeks, or are they could be as high as two years of notice; sometimes a little bit more than that. So it’s a common misconception we get from a lot of our clients when they approach us and they’re describing the circumstances of their terminations, and when we say you know, you were wrongfully dismissed, and they’ll say, “no, no, no I got my two weeks notice I’m not wrongfully dismissed”. So be careful about that.

Another misconception about termination again is a lot of people believe that they are entitled only to the statutory rights, what does that mean? A statute is a legislation, these are the laws that are created by Parliaments whether provincial or Federal, and they are created in the form of a statute. So, I’ve given you an example Ontario Employment Standards Act as one statute right here, and it does provide what are your rights on terminations and so, Section 57 is really right here. Employee-Employer notice period, and then it provides if you were employed for two years, three years, eight years or more what your rights are. And what happens is a lot of times when people are terminated they, obviously, try to research the dismissal issues online. They go to Google they find the Employment Standard Legislation, they read it and then they conclude that if they were given the rights that are in that statute that’s all they’re entitled to, so, that’s the end of it. It’s a very common misconception and a very significant one, because your rights could be a lot more than what’s written in the statute.

Statute generally are the floor rights, these are the bare minimum rights that you’re entitled to. They may not be the maximum rights and the difference could be huge in terms of what your entitlement are. So, one way to understand it, is that you may have statutory rights, which you do; and then you also may have common law rights, which is another lecture we’ll explain that. But, you may have significantly more rights than what’s in the statute. So, it’s a common misconception just because you have been given the notice as per the statute, it does not mean that you have been given your full rights and termination.

Another misconception is that when the employer terminates you they need to have a just cause against you. We get clients calling us and saying, I have been terminated but I had done nothing wrong. I was working for this employer for 10 years, I have great performance evaluations, the employer has no grounds to terminate me and they have terminated me and therefore it’s wrongful dismissal. That is a misconception. An employer in law in Canada has a fundamental right to terminate any employee at any time. So, you could be employed with a company for 30 years and one fine morning the employer can come to you and say, thank you very much pack your bags we no longer need your service; and that’s okay. There’s further to that, the employer is required to give you your severance or termination notice … that’s the second component of it. But just the sheer fact that the employer needs to have a reason or a cause against you to terminate you is incorrect. And I guess this comes from you know our understanding coming from mostly from our parents, or even for some of us who are older; that you know people used to work for one company for their entire life or for a very long period. And somehow they tend to believe that the right to employment with the same company is for indefinite term, but that’s not the case it’s a misconception don’t think about that.

Relating to that, is another misconception that employer must provide a reason for termination; we get this again, a lot of times. A client comes to us and says, “I was called into this meeting, there was a Human Resources person. my manager was there. They gave me this letter which basically said that my employment is terminated and this is what I’m going to get as a part of severance … but I asked them why did they terminate me and they did not provide me any reason”; and their failure to provide me reason means that it’s a wrongful dismissal. That’s not correct, an employer does not need to give you any reason. Often times the employer does give you some reason either for example, you know it’s undergoing restructuring or the change of nature of business, or your particular position is eliminated and that’s all fine. But there is no legal obligation on the employer to provide you with a reason for termination. They can terminate you without providing any reason, so, that’s a misconception.

Misconception number 6, and we see this often too. Employers cannot terminate me since I am on disability. People on disability and that does not necessarily mean a disability in the form that we normally understand, people who are on wheelchairs, or who have those sort of, parking stickers and disability not necessarily that. Disability and Human Rights Code is a very broad term and so, it could apply to a variety of illness situations so it’s a very broad term, but anyway. People on disability for whatever reason either they’re in short-term disability or they are on medical leave of any kind; and the employer terminates them while they’re on leave and they believe that it’s discriminatory and the termination is wrongful. But that’s not necessarily the case, if the termination is related to or is because off disability, then yes, you may have a claim for wrongful dismissal or human rights discrimination. But if it’s unrelated to disability then the employer has a right to terminate people even if they are on disability. So, for instance, if you are on short-term or long-term disability getting benefits for those kind of illnesses, and the employer undergoes some sort of restructuring and the result, the consequence of that, is that he your employment is terminated. Not because you’re disabled or not because you’re in disability or illness, but quite apart from that then it’s fine. You don’t have a legal right to have employment kept for you until you return from your disability.

A similar misconception relates to when women are on maternity leave or parents are on parental leave, they assume that for the length of their parental or maternity leave, their employment is kept and an employer cannot terminate them – incorrect. An employer can still terminate you even if you’re on parental leave or maternity leave. As long as it’s not the act of termination is not discriminatory, it’s not because you are on mat-leave or it’s not because you’re on parental leave, so, that shouldn’t be the reason or one of the reasons for termination. But otherwise an employer has right to terminate you at any time.

Misconception number 8, this is from the employer’s perspective. Sometimes these are sort of, unsophisticated employers and we have seen a few of those, which believe that if they don’t have a written employment contract with an employee that employee has no rights and terminations or any other kind. Incorrect, an employee has a number of rights. Just like employer has a number of rights the employee has a number of rights under common law and under statute that may be enforceable, even if you don’t have a written employment contract.

Related to that on the other side of the coin is the employee believing that because he or she does not have a written employment contract, you know, they don’t have any rights on termination, which is incorrect. And just sort of you understand this from the employee side. If you are an employee and you don’t have a written employment contract then generally speaking, you have the most rights available to you under common law, especially on terminations then if you actually had a written employment contract. So, generally speaking, a written employment contract generally tends to limit your rights from common law to what is specified in that contract … not the other way around. So, one way to put it, is that when employer provides you with a written employment contract. It’s generally for its own interest, not necessarily for the employee’s interest, so, something to keep that in mind.

Misconception number 10, my employer gave me working notice but they have not given me any severance. And I’m using the term severance more broadly in a sort of common terms; we will explain what is a severance pay in a separate lecture. But my employer didn’t give me the money, let’s put it that way. I got a working notice. So, it’s important to understand that employer does not have an obligation to give you money on termination, the actual the real obligation is to provide you with working notice, what does that mean? The employer comes to you and says, “okay, two months from now, so, let’s say we’re in January. You know March 31, 2017 your employment is going to end, that’s your last your employment is terminated I’m giving you notice today and so you’re required to come to work every day just like you are employed and perform your duties and you will get paid and then come March 31^st you leave this employment and you’re gone, and you don’t get any more money. That’s what the fundamental obligation is, to give you working notice, whatever that working notice is”. But, in most cases employers what they tend to do is rather than giving working notice they call the employee and say, today you’re terminated today, you don’t show up tomorrow and we’ll give you money until March 31^st and that’s called Payment in Lieu of Notice. But that’s not the essential legal requirement; the legal requirement is just working notice. Why a lot of employers do that? That they give money to employees as opposed to working notice? Because they don’t want an employee who is going to lose his or her employment in the near future to come back to work. It kind of makes their job harder, it makes it difficult for everybody around them, and so, kind of creates a tense environment and workplace. So employers, in order to avoid that, they give money in lieu of notice. But there’s no entitlement in terms of money.

Okay, hopefully that helped in clarifying some of the basic concept about Wrongful Dismissal. We will provide more videos on these topics and hopefully it will help you understand better your rights and obligations under Employment Law in Canada.

If you have any questions or comments please send us an e-mail, if you require a consultation you can book it through Clarity or you can reach out to our law firm Formative and we’ll be happy to address that. And if there are any topics that you would like us to cover or if there’s anything that you noticed that you did not understand in this lecture by all means reach out to us, and we will be happy to clarify that. Thank you for listening, see you soon.