I’ve been fired, what do I get?

Feb 07, 2017

4069798055_dcca0a18fc_oThis is the most common inquiry we get. Unfortunately, there’s no easy answer: your entitlement depends on a whole range of factors. While we explore some of these below, this shouldn’t be taken as legal advice. What you’re owed will depend on your unique circumstances.

Am I owed anything at all?

If your employer had a good reason to fire you, you may be out of luck. Don’t be discouraged though, this is generally a hard standard to meet!

My employer didn’t have a good reason to fire me, now what?

If your employer can’t justify the termination, they must either:

  • Give you advance notice of your end date (i.e. working notice); or
  • Pay you the equivalent of the advance notice period (i.e. pay in lieu of notice).

In both cases, the notice period is the same. The only difference is whether you’re required to work during the notice period. There are two main places we look to evaluate the amount of notice an employee is owed.

  1. Employment Standards Act

The first place we look is the Employment Standards Act (“ESA”). The ESA sets out the basic notice entitlements for most employees. It’s based on the following formula:

Period of Employment

Less than 3 months                                        No notice

3 months or more, but less than 1 year         1 week

1 year or more but fewer than 3 years          2 weeks

3 years or more but fewer than 4 years        3 weeks

          And so on, up to a maximum of 8 weeks

In some circumstances, the ESA will also entitle employees to severance pay up to a maximum of 26 weeks.

2. Common Law Notice

Aside from ESA notice, most employees are entitled to “common law notice”. This is what you might be awarded if you went to court. Unlike ESA notice, there is no mathematical formula for common law notice. Instead, courts try to determine what would be a “reasonable” amount of time for you to find a new job. Notice is intended to act as a bridge to your next job, it is not intended to punish your employer for firing you.

Common law notice varies a lot, but it’s often in the range of one month per year of service. (The amount partly depends on whether you’ve continued to look for work. If you haven’t, this can shorten your notice period.)

Because common law notice can be quite high, some employers will try to use employment contracts to limit employee notice. If you signed a contract or received a written offer letter at any point during your employment, it is important to have a lawyer review it to determine if it affects the amount of damages that you may be able to claim. Keep in mind that these contracts and termination clauses are not always valid or enforceable.

What if my termination was discriminatory?

If you were terminated for discriminatory reasons, such as because of your race, religion, disability (or other grounds set out in the Ontario Human Rights Code), you may be able to claim additional damages under the Code. These damages could include compensation for loss of earnings and for mental distress.

Is that all?

In most cases, yes. However, if there are extenuating circumstances, you may get something more. This could include the employer’s use of harassing, abusive or discriminatory language when terminating you. The amount that you’d receive in these circumstances is highly contextual and can’t be estimated without additional information.

Of course, every case is different and it is important to get legal advice to find out what sort of damages and remedies you may be entitled to after your employment has been terminated.

If you’ve been fired and are seeking an estimate for what you’re owed, contact us. Symes Street & Millard has extensive experience representing employees who have been wrongfully dismissed.

By Mika Imai; photo by James 2 (Flickr), used under creative commons commercial license.

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