People typically like things which are free. Its why some lawyers advertise that they offer free consultations. Contacting the Ministry of Labour and filing a claim so you can get your termination pay sounds like a great idea. You do not have to pay a lawyer and you ultimately get to keep everything you are paid in your pocket. This sounds like a dream scenario for most people who are recently terminated without cause especially for the majority who have mouths to feed, mortgages or rent to pay and need income to make ends meet. Unfortunately, in this case the Ministry of Labour will likely cost you tens of thousands of dollars.

The first thing you should do is contact your family. The second thing you should do is contact an Employment Lawyer. An Employment Lawyer may also go by Wrongful Dismissal Lawyer amongst other names. Do not be confused as these all represent areas in which an Employment Lawyer Practices.

The Ministry of Labour can only help you obtain your minimum entitlements per the Employment Standards Act. This implies the Ministry of Labour can help you get severance of 1 weeks pay per year worked up to 26 weeks but there are additional requirements.

• You must have worked for your employer for 5 years whether continuous or not.
• The employer must have either a payroll of over $2.5 million or let go 50 or more employees in a six month period because all or part of the business is being closed.

In addition to this you are entitled to 1 week of termination pay per year worked regardless of whether you meet the above requirements up to 8 weeks.

What the Ministry of Labour does not advise you is that they will only assist you in obtaining the minimum amount provided for by the Employment Standards Act if you use their service.

Common law which represents cases which have gone before a Judge tells an entirely different story of what Employees are entitled to when they are terminated without cause. In most cases employees will be entitled to significantly more money under common law then by relying on the Employment Standards Act. It is not uncommon to see people entitled to 10’s or 100’s of thousands more via common law.

Common law notice is typically capped at 24 months however there has been several cases in the past few years where more than 24 months pay has been awarded.

Employment Lawyers look through comparable cases and try to make a best determination as to what you would be awarded by a Judge at Trial.

Arguably the most important employment law case in Canada is what is known as the Bardal case that dates all the way back to the 1960’s. The test outlined in it is still used today though I have used more modern terms to refer to each of the factors. The following Bardal Factors are applied by Employment Lawyers and Judges in trying to determine the appropriate amount of severance for Employees:

• Age – The older you are the more severance you are entitled to under common law.
• Income – This is to include bonuses, car allowances etc. The higher your income the higher the amount of severance you are entitled to per common law.
• Length of Employment – The longer you are employed by a company the more severance you are entitled to. (Exceptions apply in situations such as where inducement occurs)
• Position – Typically the higher the role in the company the more severance you are entitled to. 
• Availability of Similar Employment – The lower the availability of similar employment the more severance you are entitled to.
• Special Circumstances – While this could be any number of things an example would be an Employee who developed a disability which would make it more difficult for him to find comparable employment.

As you can see when an Employment Lawyer or Judge attempts to balance these factors there is no clear math as to what exactly is owing. This has led to the development of significant case law and precedent. Precedents are cases of employees who fit similar criteria when analyzing the Bardal Factors.

Paquette v. TeraGo Networks Inc., 2016 ONCA 618

This is an Ontario Court of Appeal decision. The employee Paquette was 49 years old at the time of termination and had 14 years service time. Paquette was the Director of Billing and Operations Support Services and earned an annual salary of $125,000. His yearly benefits were worth $4,922.52. He also had received an average bonus of $29,193.32 over the years 2011, 2012 and 2013. On appeal Paquette was awarded pay and benefits for a 17-month notice period totalling $163,267.90 as well as 2 years of bonuses totalling $58,364.64. In total Paquette was awarded $221,632.54 plus costs.

He would have received around 14 weeks pay in severance plus 8 weeks pay in termination. The difference would have been upwards of $150,000.

Once you file a claim in relation to losing your job with the Ministry of Labour in most cases an Employment Lawyer can no longer help you. There is typically a 2-week period in which it may be possible for you to withdraw your application with the Ministry of Labour. If you filed a claim with the Ministry of Labour drop everything and contact an Employment Lawyer immediately.

Most people when they receive an Employment Contract are interested in the Salary, Bonuses, Benefits, and other perks. What they fail to realize is often there are far more important terms in the contract that create limitations on Employee entitlements upon being terminated. These are typically referred to as Termination Clauses and usually provide for the minimum notice period including salary, all bonuses, car allowances etc. per the Employment Standards Act.

Generally, when you receive an Employment Contract the shorter the better. A long one likely will have all kinds of terms in it limiting your rights. Sometimes crafty employers will try to get you to sign a new Employment Contract several years into your employment. Any time you get an Employment Contract you should have it reviewed by an Employment Lawyer.

One of the common concerns an Employment Lawyer hears upon meeting with a client who has received an Employment Contract is if I ask for changes to it, I will not get the job. Well this may be true if you ask for 75 changes to it. The key is to focus on a few big ones. You must remember that after interviewing many candidates they have decided that they want to hire you. In most cases the employer will be willing to make some compromises on the Employment Contract to get the employee they want.

Most employers do not want to pay large sums of money after terminating an employee like occurred in Paquette. An Employment Lawyer can help Employers limit their risk in a variety of ways.