Employers are not “handcuffed” to their employees. As long as the employee is given sufficient notice or pay instead of notice of his or her pending termination, the employer can terminate the relationship. There is a presumed misconception that COVID-19 allows some employers to terminate the employment relationship without notice or pay in lieu thereof. This makes senior & high paid employees the most prominent target.
Ontario has two main avenues in determining notice of termination of employment. The first is based on the lawful contract between the parties. The second is based on common law. If the contract is lawful and sets out sufficient notice, the employer may terminate the relationship by providing either meeting or exceeding what’s in the contract.
It would be best if you had a lawyer review your contract either way. In glancing at your contract, you should look to answer the following questions:1. Is there a termination clause in my contract?
2. Is there a temporary lay-off clause or “pandemic” clause in my contract?
3. How much does the termination clause provide for notice?
4. Is the termination clauses notice sufficient?
5. The last question requires the knowledge of an experienced employment lawyer.
Lawyers, rightly so, are predicting a significant uptick in employment cases soon. It should not be a surprise to see several advertisements for employment consults and representation. It can be difficult to navigate which lawyers can meet the test and which may be taking advantage of this uptick. When trying to find a good employment lawyer, you should focus on the following:
Experience in the field: Employment law is ever-changing, and in order to do the job properly, lawyers must stay informed on the current law and its many changes. Committing to a lawsuit can be costly, and it needs to be done right.
Free Consultation: Some law firms offer free consultations to clients. That consultation may be, but is not always done by a lawyer who will represent you. Be sure to ask whether this is the case and before you sign a retainer, make sure you meet your actual lawyer. A lawyer-client relationship is often longstanding and requires a “meeting of minds.” If your personality does not fit your lawyers, the representation may be miss understood or tarnished.
Legal Fees: Lawyers come with different qualities, and legal fees are not always the best indication of who is the best or the worst. Some lawyers have minimal overhead allowing them to charge less while providing the great service. Others work in large firms where your fee is not dictated by the quality of the individual service but the firm’s management structure. Generally speaking, I would avoid estimating the quality of my lawyer on the fees projected.
Reviews: Client reviews are a great way to assess your lawyer’s abilities, but a word of caution is not to label your prospective lawyer based on a review that was made against another lawyer from the same firm. Unfortunately, it isn’t easy to make every client happy. Some are much more difficult than others and may make it a mission to voice a one-sided opinion about the firm and its lawyers. Do not be swayed by one or two negative reviews
The Federal and Ontario government have developed programs for employees laid off due to COVID-19. You should reach out to the proper bodies to determine what you are eligible for during these challenging times. Your priority should be sustainability. Note that your termination notice pay may be deducted from any benefits received by the government.
Once you have chosen the right lawyer, you can rest assured that everything will be done to ensure your compensation. A good lawyer will be able to let you know the pros and cons of proceeding with an action. If your legal costs are likely to exceed your settlement, they may suggest you simply move on and find another job, or they may take on a portion of your claim only.
In Ontario, you’re obligated to mitigate your damages as much as possible. This means that you should be looking for a new job, assuming you are able to work. The earlier you start, the least likely you are to be docked a portion of your settlement for failure to mitigate. Keep track of the available jobs in your area. Note and document your applications and the status of each.