Q. I have worked for a large London-based company for 18 years. Last week, I was advised that my position had been eliminated and that I was therefore being let go. My employer provided me with 8 weeks' pay and notification that my benefits were being discontinued effective immediately. I am 58 years old, and my prospects for finding comparable employment in a timely manner are slim. Is 8 weeks' pay and a hand shake all to which I am entitled after serving my employer competently and faithfully for so many years?
A . You may have a legal claim for much more than what you were given. Under the Ontario Employment Standards Act, 2000 (the “Act”), which sets out certain “minimum” terms and conditions of employment, your now-former employer is required to provide you with advance “notice” in writing of your dismissal, or with pay in lieu of such notice (“Termination Pay”). The Act provides that an employee (with at least 3 months' service) is entitled to receive essentially one weeks' notice (or pay) for each year of service, up to a maximum of 8 weeks. Because your employer did not provide you with 8 weeks' advance notice of your dismissal, the Company must provide you with 8 weeks' pay in lieu of such notice. You have indicated that your former employer has provided you with the requisite Termination Pay.
The Act also requires your former employer, however, to continue your regular benefits coverage throughout the 8 week notice period to which you are entitled. In addition, if your former employer has a large payroll (of $2.5 million or more, in Ontario, annually), the Company is also required to provide you with “Severance Pay” in the amount of one week's pay for each year of your service to your employer, up to a maximum of 26 weeks' pay. Since your former employer did not continue your benefits plan coverage after your dismissal (for a period of 8 weeks), and since the Company did not provide you with the requisite 18 weeks' Severance Pay, you are entitled to file a complaint with the local office of the Ontario Ministry of Labour which may order your former employer to provide you with the necessary payments and benefits plan coverage.
As an alternative (and NOT in addition to) the above, you may assert a wrongful dismissal claim pursuant to the common law. At common law, your employer is required to give you “reasonable” notice of termination (unless you are being dismissed for “just cause”—which in this case, you are not). What the courts find “reasonable” is determined by examining a number of factors, including: your years of service with your employer; your age at the time of dismissal; the character of your pre-dismissal position (ex. managerial, clerical, professional, or sales); and the availability of comparable, alternative employment. If the court determines that the amount of notice (or pay in lieu of notice) that was given to you was not reasonable, the court will order your former employer to pay you damages based primarily on the remuneration to which you would have been entitled had the Company continued to employ you during a “reasonable” period of notice.
For a 58 year old employee with 18 years' service, the period of reasonable notice to which you may be found entitled could be anywhere from 9 to 20 months depending on the nature of the position which you held at the time of your summary dismissal. The court could also award: additional damages if your former employer discharged you in a “bad faith” manner; special damages for the expenses you incur in seeking alternative employment; interest; and a portion of your legal costs. You should note, however, that the courts impose on wrongfully dismissed employees the obligation to “mitigate their damages” (to lessen the losses they suffer as a result of the improper dismissal). For this reason, as a wrongfully dismissed employee, you must use reasonable efforts to attempt to find comparable , alternative employment. Any money that you receive from such employment (should you find it) during the period of reasonable notice will be deducted from the court's calculation of your damages for wrongful dismissal.
In light of the above, it would be well worth your while to have the terms of your severance package reviewed by a lawyer who practices employment law. That lawyer should be able to both advise you more specifically as to the insufficiency of the Company's severance arrangements, and discuss with you the various legal options which are available to you.
Note: The information contained in this article is issued to provide general information only. It is not intended to provide legal advice and should not be acted upon without consultation with professional advisors.
