Termination is a stressful experience for any employee. An employee who has been fired needs to understand what their employer owes them, and what their employer is offering them. When employers do not make this clear, additional damages could be due to the employee.
When an employee is terminated, they are entitled to receive certain minimum payments under the Employment Standards Act (ESA). They may also be entitled to far more under common law depending on the terms of their contract (read more about that here).
Often employers will offer more than the ESA amounts to get an employee to sign a release and give up the employee’s right to sue. The court has affirmed that employers must be very clear with employees when they are terminated that they will receive their ESA entitlements regardless of whether they sign a release. The court further demonstrated that there will be consequences when an employer fails to deal with the employee in a fair and reasonable way during the end of employment.
In Russell v The Brick Warehouse LP, the employer failed to tell the employee, Tom Russell in his termination letter that he would receive his minimum entitlements under the ESA, including continuation of his benefits, even if he did not sign the release they included.
Mr. Russell had worked at The Brick for 36 years and was 57 years old at the time of his termination. The judge ruled that Mr. Russell was owed 24 months’ pay in lieu of notice, on the basis of his age, title, and length of employment.
Additionally, the judge ordered The Brick to pay Mr. Russell $25,000 in moral damages because of their behaviour during termination. The judge focussed heavily on the fact that the termination letter did not advise that if Mr. Russell declined the offer, he would be immediately provided with his statutory entitlements under the ESA. The judge said that by failing to include this provision in the termination letter, The Brick was not being honest and forthright with Russell.
The important takeaway from this case is that the court will not look kindly upon employers who do not make clear to their terminated employees that they will receive what they are owed under the ESA, and who do not provide those entitlements in the correct way. An employee who is terminated under these conditions may be awarded additional amounts in damages on top of what they are owed in severance and termination pay.
If you have been terminated and are not sure what you are entitled to, you should contact an employment lawyer to better understand your rights.
You can contact Barrie and Toronto Employment Lawyer Nicole Simes at MacLeod Law Firm via [email protected] or 647-204-8107.