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Difference between revisions of "Employment Law Issues (9:V)"
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☑ This section applies to both provincially and federally regulated non-unionized employees, dependent contractors, and independent contractors. It is necessary to determine which category the worker falls under. See [[Preliminary Matters for Employment Law (9:III) | Section III: Preliminary Matters]] to determine this. | ☑ This section applies to both provincially and federally regulated non-unionized employees, dependent contractors, and independent contractors. It is necessary to determine which category the worker falls under. See [[Preliminary Matters for Employment Law (9:III) | Section III: Preliminary Matters]] to determine this. | ||
☑ Determine whether the worker has an indefinite or fixed term contract of employment. See | ☑ Determine whether the worker has an indefinite or fixed term contract of employment. See Section IV.D.2(a): Indefinite vs. Fixed Term Employment for details, as some contracts that appear to be for a fixed term may be deemed to be of indefinite duration by the courts, particularly when the fixed term contract is renewed year after year. | ||
*If the contract is for an indefinite term, or if the worker was dismissed part way through a fixed-term contract, go to the next step of the checklist. | *If the contract is for an indefinite term, or if the worker was dismissed part way through a fixed-term contract, go to the next step of the checklist. | ||
*If the worker was dismissed at the end of a fixed-term contract of employment, then their contract has simply been completed and there is generally no further entitlement to severance pay (unless their contract specifies otherwise). | *If the worker was dismissed at the end of a fixed-term contract of employment, then their contract has simply been completed and there is generally no further entitlement to severance pay (unless their contract specifies otherwise). | ||
☑ Determine whether the worker was dismissed or if they resigned. Sometimes a worker may have been forced to resign or may have had their pay or working conditions changed significantly; see | ☑ Determine whether the worker was dismissed or if they resigned. Sometimes a worker may have been forced to resign or may have had their pay or working conditions changed significantly; see Section IV.D.2(d): Dismissal to determine whether your situation would be considered a constructive dismissal or a resignation. | ||
*If the worker was dismissed, continue to the next step of the checklist. | *If the worker was dismissed, continue to the next step of the checklist. | ||
*If the worker voluntarily resigned, they are generally not entitled to severance pay (unless their contract specifies otherwise). | *If the worker voluntarily resigned, they are generally not entitled to severance pay (unless their contract specifies otherwise). | ||
☑ If it appears that the contract may have become impossible to perform, determine whether there has been “frustration” of the contract; see section IV. | ☑ If it appears that the contract may have become impossible to perform, determine whether there has been “frustration” of the contract; see section [[{{PAGENAME}}#16. Frustration of Contract | IV.E.16: Frustration of Contract]]. Note that this is rare, and layoffs usually do not fall into this category. | ||
*If the contract has been frustrated then generally there is no entitlement to severance pay. Otherwise, continue to the next step of the checklist. | *If the contract has been frustrated then generally there is no entitlement to severance pay. Otherwise, continue to the next step of the checklist. | ||
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**For independent contractors with an indefinite contract, the rules are more complex; see the cases listed in Section III.C.1 as a starting point for research as to whether the contractor may be entitled to reasonable notice. If the contractor is entitled to reasonable notice, continue to the next step of the checklist. | **For independent contractors with an indefinite contract, the rules are more complex; see the cases listed in Section III.C.1 as a starting point for research as to whether the contractor may be entitled to reasonable notice. If the contractor is entitled to reasonable notice, continue to the next step of the checklist. | ||
☑ Determine whether there may be just cause for dismissal; see | ☑ Determine whether there may be just cause for dismissal; see [[{{PAGENAME}}#5. Just Cause Dismissal | Section IV.E.5: Just Cause]]. Note that it is often very difficult for an employer to prove that there is just cause. If there may be just cause, consider whether the employee has a potential defence; see Section [[{{PAGENAME}}#6. Defences to Just Cause Arguments | IV.E.6: Defences to Just Cause Arguments]]. | ||
*If you think that the employer can prove in court that they truly had just cause for dismissing the worker, and the worker does not have a defence, the worker will generally not be entitled to severance pay. | *If you think that the employer can prove in court that they truly had just cause for dismissing the worker, and the worker does not have a defence, the worker will generally not be entitled to severance pay. | ||
*If there is a reasonable chance that the employer did not have just cause for dismissal, or if the employer may not be able to prove that there was just cause, continue to the next step of the checklist. | *If there is a reasonable chance that the employer did not have just cause for dismissal, or if the employer may not be able to prove that there was just cause, continue to the next step of the checklist. | ||
☑ For those workers entitled to reasonable notice, determine an approximate length for the worker’s reasonable notice period; see | ☑ For those workers entitled to reasonable notice, determine an approximate length for the worker’s reasonable notice period; see Section IV.D.2(e): Notice. Note that it is difficult to predict how much a particular worker will receive if the case goes to trial, but case law can give an approximate range. Once this is done, calculate the damages the employee would be entitled to for the reasonable notice period. This generally includes the salary and benefits that the employee would have received if they had continued to be employed during the reasonable notice period. | ||
*If the worker was given severance pay to cover their lost wages and benefits for the length of the reasonable notice period, or was allowed to continue working for the employer for that period, they will generally not be entitled to anything further. | |||
*If the worker was given less working notice or severance pay than they are entitled to through their reasonable notice period, they may be able to claim the remainder in court; continue to the next step of the checklist. | |||
p9- | ☑ Determine whether the worker has mitigated their damages. Note that if the worker has mitigated their damages during the notice period, for example by finding a new job, they will have their severance award reduced by the amount of money they earn during the notice period. If the worker does not make reasonable attempts to find a new job, they may have their severance award reduced. See [[{{PAGENAME}}#14. Duty to Mitigate | Section IV.E.14: Duty to Mitigate]]. | ||
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