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If you are not a union member, your employer can terminate your employment at any time either for a justifiable reason (“cause”) without advance notice or, depending on the terms of your employment contract, by providing you sufficient advance notice (“reasonable notice”) or pay in lieu of reasonable notice that your employment is going to be terminated.
If the employer has cause to terminate your employment, it must pay you everything it owes you up to the moment you’re fired, including banked overtime and vacation leave. If an employer thinks it can terminate your employment without providing reasonable notice or pay in lieu thereof, it will.
So, if your employer tells you that you are fired for cause, what should you do?
#1: Don’t sign anything!
If your employer is firing you for cause, then that means they’re saying they’re not going to pay you any termination or severance pay. So don’t give them anything in return, either. Don’t sign anything, and go see an experienced employment lawyer!
#2: Talk to an experienced employment lawyer to get legal advice tailored to your circumstances
When an employer’s saying that it had cause to fire you and it doesn’t have to pay you, the onus or burden is on the employer to show that the termination for cause is justified.
Talk to an experienced employment lawyer as soon as you can. He or she can advise you whether or not the employer would likely succeed to fire you without reasonable notice. Figuring out whether an employer had cause at law to fire you isn’t a science. You can’t figure it out as a layperson by doing Google research or watching a YouTube video. It can depend on a lot of things.
For example, you should generally be warned about misconduct before you’re fired. However, this might not always be the case if the allegations are really serious like theft or assault. Whether your employer has “condoned” or put up with the behaviour in the past, then later fired you without a warning for the same thing will matter. The length of your employment might factor into whether a judge would agree that you were not owed reasonable notice or pay in lieu of reasonable notice. The quality of any investigations that took place, and the credibility of any witnesses who made allegations against you, could also be important.
#3 Consider applying for employment insurance and taking legal action against your employer
Applying for employment insurance (“EI”) as soon as possible should be a top priority when you’ve lost your job. If your claim for EI benefits is denied, then appeal and consult an employment lawyer if you have not already done so. Employees usually will miss their employment income, and it’s important to get replacement income as fast as you can. Thankfully, it’s not the employer that decides whether or not you’re entitled to payment of EI benefits. An experienced employment lawyer can explain how to prepare to talk to the Service Canada individuals about what happened and how you can go about appealing any decisions that aren’t in your favour.
You may also want to apply to the administrative tribunal responsible for employment standards in your province or jurisdiction for the statutory payments you’re owed under employment standards legislation. For provincially regulated workplaces in BC, for example, you’d apply to the Employment Standards Branch. You should talk to your employment lawyer about this. Employees pursue these amounts on their own, because the amounts involved often don’t justify having a lawyer represent you.
If your employment lawyer thinks that your employer didn’t have cause to fire you, and you’re owed something more than the minimum statutory termination pay, then usually the next step will be for your employment lawyer to send a demand letter to the employer setting out your position and case law, and justifying how much pay in lieu of reasonable notice you are entitled.
If you make a claim for payment in lieu of reasonable notice, you must take all steps that a reasonable person in your position to avoid further loss. This legal obligation is known as the “duty to mitigate.” The duty to mitigate requires that you take reasonable steps to look for alternate employment that would put you in the same or similar position that you were in prior to being terminated. Start by updating your resume. You must keep track of all the jobs for which you apply. Keep a job search diary, including, when, where, and how you applied. Keep copies. Keep track of the results. For example, were you interviewed or not?
You are not expected to accept just any job. The obligation is to apply for employment that would put you in the same or similar position you were in prior to the termination of your employment, e.g., wages/salary, benefits, and other entitlements. Your former employer must prove that you did not make reasonable efforts to mitigate your loss.
If you are lucky enough to find a new job quickly that places you in the same or similar position, then any money you make within your notice period will reduce the amount you can claim for pay in lieu of reasonable notice. It’s important to know that you can’t avoid these reduced damages by simply not looking for a job; this “duty to mitigate” is something the law expects you to do when you are fired, and, if you don’t take reasonable steps to look for a suitable job, your damages might be reduced at trial – or not awarded at all. (We write about the duty to mitigate here and talk about it here.)
#4 Don’t let the fear of legal fees get in the way of talking with a lawyer or pursuing a fair settlement!
Talking to an employment lawyer quickly can clarify exactly what is at stake for you. At Labour Rights Law, we take pride in setting out the options, costs, and risks. Providing value to clients is our first priority – and most claims, in our experience, settle relatively quickly. For example, in our experience, less than 3% of wrongful dismissal claims go to trial. More than 75% of wrongful dismissal claims are settled with the employee receiving a cash settlement during negotiations after a demand letter from an experienced employment lawyer. We talk more about this issue here.
Please keep in mind that the advice above is for those employees who are not unionized. If you’re unionized, you need to obtain a copy of your collective agreement, then immediately talk to an experienced labour lawyer and your union about filing a grievance. There usually are very short timelines to file a grievance!
DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
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