We at Barriston know that your employment is critical to your identity, personal success, and security. The Supreme Court of Canada has also noted this. Employment law in Ontario is often complex and your rights and obligations usually depend on your particular circumstances. If you believe that you have been wrongfully dismissed, you may want to consider meeting with one of our employment lawyers. We can review the specific factors of your dismissal and see what you may be entitled to. The most important thing is not to panic. We understand that this will be a difficult time for you, and Barriston is committed to providing you with the peace of mind you need.

Understanding the Law

The key legislation in regards to wrongful dismissal is the Employment Standards Act (ESA), 2000. Under the ESA, a person’s employment is terminated if the employer:

• Dismisses or stops employing an employee, including where an employee is no longer employed due to the bankruptcy or insolvency of the employer;
• “Constructively” dismisses an employee and the employee resigns in response, within a reasonable time:
  • A “constructive” dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent
• The employer lays an employee off for a period of time that is longer than a temporary layoff:
  • Generally, a temporary layoff can last no more than 13 weeks in a period of 20 consecutive weeks or;
  • More than 13 weeks in any period of 20 consecutive weeks, but less than 35 weeks of layoff in any period of 52 consecutive weeks if certain criteria are met.

When the employer terminates the employment of an employee who has been continuously employed for at least three months, the employer must provide the employee with written notice of termination, pay in lieu of that notice, or a combination of notice and pay (as long as the notice and the number of weeks of termination pay together equal the length of notice the employee is entitled to receive).

Filing a Claim under the Employment Standards Act (ESA)

One form of recourse for an employee who feels as though they have been wrongfully terminated is to file a claim under the ESA. It is important for those wishing to film a claim to know that there are time limits that apply to filing an ESA claim. Generally, you must file within two years of the alleged ESA violation. Filing a claim within the two-year window ensures that an employment standards officer will investigate your claim.

When can you not File a Claim?

Each wrongful dismissal case is different, hence why it is critical for you to seek legal advice. There are two instances in which an ESA claim cannot be filed:

• You have taken court action against your employer for the same issue. In Ontario, you cannot pursue both an ESA claim of wrongful dismissal and a wrongful dismissal lawsuit for the same claim. Our lawyers can help guide you through the different courses of action and decide what works best for your specific case.

You are represented by a union and covered by a collective agreement. If you are covered by a union there is a different process, which often goes to arbitration.

Further, the ESA claim forum is not a catch-all for all wrongful dismissal cases in Ontario. If you work in an industry that falls under federal jurisdiction, the ESA claim forum is not appropriate.

What Happens Next?

Once you have filed your ESA wrongful dismissal claim, it takes some time before you receive a decision about your claim. The process will generally go as follows:

Step One:

• Your claim will be assigned to an Employment Standards Officer (ESO)
• Your employer will then be contacted by the ESO and the ESO will ask your employer if they wish to amend the issue. If they chose not to, the ESO will move forward with the investigation into your claim

Step Two:

• The ESO will conduct the investigation into your claim.
• They will investigate the information you provided; your employer may provide information as well to provide their position of the situation.
• The ESO may email or call you to get more information about your case. If you are asked about something and cannot remember the answer, it is okay to say that you do not remember. It is your employer’s responsibility to keep records of hours and pay. If they have not kept these records, that in itself is a violation of the ESA

Step Three:

• After the investigation has concluded, the ESO will write a decision.
• If you disagree with the decision made by the ESO, you are able to appeal that decision to the Ontario Labour Relations Board. If this is the course of action you wish to take, you must file your application for review within thirty days of the ESO’s decision.

We understand that this process can be sound stressful. Our employment law team will be by your side throughout this entire process to provide you with the peace of mind you need to obtain what you are entitled to. We can help you navigate and resolve wrongful terminations of employment, and provide representation to pursue these claims.

Written by Maclain Sinton and Nicolas Guevara-Mann