Fired or Laid Off? Know Your Rights
If you have been fired or laid off with no notice, or no pay, your employer may be breaking the law.
Find out about your rights under the Ontario Employment Standards Act (ESA).
Not all jobs are covered by the ESA, and in some cases only parts of the ESA apply.
Some employers claim that their workers are self-employed or independent contractors and the ESA does not apply to them. If this is your situation, it is a good idea to get legal advice. Even if you signed something that says you are an “independent contractor” or in business for yourself, the rights in the ESA might still apply to you.
Some industries are regulated by the federal government, including banks, airlines, trucking, and broadcasting. Workers in these industries are covered by the Canada Labour Code.
Your employer does not have to tell you why you are being fired or laid off.
In most cases, if you are fired or laid off for more than 13 weeks, your employer must give written notice. If you are fired without proper notice, your employer must give you termination pay – your normal wages for the weeks you should have been given notice. The amount of notice or termination pay you get depends on how long you have worked for your employer. The ESA sets out minimum notice periods ranging from 1 week for people who have worked at least 3 months, to 8 weeks for people who have worked for 8 years or more. If an employer fires 50 or more workers within a 4-week period, the minimum notice periods might be different and you should seek legal advice.
A notice ordered by the Court: A court can decide that more notice was required in a particular case because the court is not limited to the minimum notice periods in the ESA. The amount of notice a court will order depends on all the circumstances, such as the type of job, the availability of similar employment, and the age of the worker – not just length of employment. A court can also order an employer to pay you for damages such as discrimination, harassment.
You can be laid off without notice if you are laid off temporarily. In most cases, the law says you are laid off temporarily if you are laid off for 13 weeks or less. The rules about temporary lay-off are complicated. If you are laid off, get legal advice about whether your lay-off is temporary or permanent.
In some cases, being forced out of a job is the same as being fired. For example, if you leave because your employer refuses to pay you, or because your employer is discriminating against you, you may have the same rights as if you were fired. You should get legal help right away.
In some situations you can be fired or laid off without notice; if you have not worked continuously for at least 3 months, or if you are fired because of your own misconduct However, what your employer says is misconduct might not be misconduct under the law so you should seek legal advice.
If you are protected by a union, check your collective agreement to find out about your rights at work, or talk to your shop steward. You will have to use the grievance procedure in the collective agreement to enforce your rights.
Severance pay is another payment that some people get when they lose their jobs under specific circumstances. To qualify you must have worked at least 5 years for your employer and your employer pays out wages of at least $2.5 million a year in Ontario, or at least 50 people will be losing their jobs within a 6-month period because the business is being cut back. Under ESA severance pay equals one week’s pay for each year of employment, up to a maximum of 26 weeks.one week’s pay for each year of employment, up to a maximum of 26 weeks.
Your employer must pay your wages and vacation pay and any money owing to you as a result of your termination no later than 7 days after your employment ends, or your next regular pay day if it comes more than 7 days after your employment ends. Severance pay can be paid in instalments up to 3 years if you agree in writing or if the Director of Employment Standards approves. In this case if your employer misses a scheduled payment, the balance of the severance pay becomes due immediately.
Your employer must prepare a Record of Employment (ROE) and give it to you within 6 days after your last day of work. Or your employer can send it to the government electronically within 16 days after your last day of work.
f you are unemployed and looking for work, you may be able to get Employment Insurance(EI) benefits. If you do not qualify for EI or you are waiting for EI, you might be able to get social assistance benefits from Ontario Works (OW). If you quit or got fired, you might still qualify for benefits depending on the circumstances.
In most cases, you cannot get your job back if you are fired. But, if you think you were fired because you tried to exercise your legal rights under the ESA, you should get legal help. The Ministry of Labour can order your employer to compensate you and give you back your job. Examples of exercising your legal rights under the ESA are:
- taking the pregnancy or parental leave you are entitled to, and returning to your job at the end of your leave,
- asking about your rights or asking your employer to obey the law,
- refusing to sign an agreement affecting your rights (for example, an agreement about how you will be compensated for overtime),
- making a claim against your employer, or
- giving information to an Employment Standards Officer who is investigating your employer.
You should also get legal help if you think you were fired:
- because of your race, sex, age, disability, or other reasons that violate your human rights,
- because you raised a health or safety issue in the workplace, or
- because you raised a concern about your employer not obeying environmental protection laws.
You may be able to enforce your rights as a worker by making a claim against your employer. The Ministry of Labour can order your employer to pay you money that you are owed.
In some cases, you may be able to bring a court action against your employer. If you do, you cannot file a claim for the same violation of your rights with the Ministry of Labour.
In general, a claim for unpaid wages must be filed with the Ministry of Labour within 6 months of the date the wages were owing. The claim can include unpaid wages for the last 12 months, as long as it is filed within 6 months of one of the dates when unpaid wages were due. A claim for vacation pay can be filed up to 12 months after it became due.
In certain cases, you have up to 2 years to file if your claim does not involve any unpaid wages. For example, you have up to 2 years to file a claim against your employer for penalizing you, or threatening to penalize you, because you exercised your legal rights.
If your employer has gone bankrupt, you may be able to get wages, vacation pay, severance pay, and termination pay owing to you by applying to the federal Wage Earner Protection Program (WEPP).