Fired? What are your legal rights?

Under the law of employment, an employer cannot fire a worker without giving the worker sufficient notice that their job is ending. If the employer wishes to end the worker’s employment immediately, then the employer must provide the worker with pay equivalent to the notice period he or she should have received. The amount of notice that a worker receives upon termination depends on a number of factors including the worker’s age, job position, and length of employment.

An employer does not have to give a worker any notice or pay instead of notice if the employer has just cause to fire the worker. An example of just cause would be if the employee stole from the employer.

If an employer fires a worker without just cause and fails to give the worker proper notice or pay instead of notice, then the worker has been “wrongfully dismissed.” The worker can sue his former employer in court or file an Employment Standards claim with the Ministry of Labour.

The worker must choose between these two options. He or she cannot sue his employer and also file a claim with the Ministry of Labour.

Our clinic represents wrongfully dismissed workers at both Small Claims Court and before the Ministry of Labour. When we meet with a wrongfully dismissed worker, the question arises: Should the worker sue in Small Claims Court or file an Employment Standards claim? Each process has its pros and cons.

Below is just a simple guideline of the pros and cons. There are always exceptions to the rules. Please contact us for more information.

	Small Claims Court (SCC)	Ministry of Labour (MOL)
How much time do I have to file a claim?	You have 2 years from your dismissal to file a lawsuit.	You have 6 months from your dismissal to file a claim.
Is there any fee to filing a claim?	$75 fee to file a claim and an additional $100 fee to schedule a trial. However, the losing party often pays the winning party's filing fees.	There is no fee.
How long do I have to wait before the matter is resolved?	You can expect to have a trial within 1 year of filing your claim.	It is usually 6-8 months to process your claim.
If I win, how much will I get?	There is no set standard for what is an appropriate notice period. The Court will determine the appropriate notice period by considering various factors such as your age, years of service, and type of work you performed. However, the Court almost always awards the successful worker more than the MOL awards.	You will receive 1 week of pay per year of service to a maximum of 8 weeks. This is called termination pay. Long-term workers who meet very specific conditions are also entitled to severance pay, which will add 1 additional week’s pay per year of service. For example, a worker with 10 years of service who qualifies for severance pay will receive 8 weeks of termination pay and 10 weeks of severance pay.
Is there a maximum limit to how much I can win?	The maximum is currently $10,000, but will increase to $25,000 in January 2010.	The maximum is $10,000
If I lose, do I have to pay for the employer's legal costs?	Yes, the Court may order you to pay for your employer's filing fees and/or costs.	No.

EI Benefits for Both Parents

The Employment Insurance Board of Referees has allowed both parents to collect 35 weeks of Employment Insurance (EI) because they had twins. Both parents are allowed full parental leaves. Employment Insurance benefits usually allow for a combined maximum of 35 weeks of EI benefits per pregnancy. The ruling by the Board of Referees is only applicable in this case. This case may assist with EI law reform efforts to allow 35 weeks of parental leave for each parent if there are twins or multiples born.