Some call it being “laid off”. Some say I was “terminated”, or the infamous, “I got fired from my job”. They all mean the same thing most of the time. Recently in Alberta due to the COVID-19 crisis, employers are increasingly turning to temporary layoffs rather than terminations in the hopes of being able to recall their employees to work in two months or 60 days. Ultimately, you are out of work and you don’t know if what has happened is fair legally.
What does a Temporary Layoff mean in Alberta?
The Employer can decide to temporarily lay you off for a maximum 60 day period under the Employment Standards Code, sections 62-64. In this case, you have not been terminated yet. The employment relationship is simply paused for lack of a better word. You can apply for EI benefits during this temporary layoff. By day 53 of the layoff, the employer is required to let you know in writing if they are recalling you to work, and you must return in 7 days. If you don`t return after being recalled, you will have effectively resigned your position and would not be eligible for further EI benefits. If you are not recalled, then the employer has terminated you without cause and you are entitled to termination pay under the Code and possibly reasonable notice or severance pay under common law.
What Does Reasonable Notice Mean?
Did you know that, legally, when an employer dismisses or terminates you without cause, they may have to give you ‘reasonable notice’? This term refers to how much time an employer must let you know in advance of the date your job will be terminated. Most times, your employer may choose to have you stop working as soon as they give you the termination notice but pay you for that time. This is called ‘severance pay in lieu of notice’. In this case, employers will pay you severance instead of providing you with reasonable notice. How much reasonable notice or severance you will get depends on many factors. This is where it is important to have an employment lawyer review your exact situation.
Did You Get Reasonable Notice Of Your Job Termination?
Employment termination rights mean that employers must give employees reasonable notice of their job termination when they are terminating without cause. If an employer fails to give you reasonable notice, they may be at risk of a wrongful dismissal claim and may be liable for damages. Alberta’s Employment Standards Code (“the Code”) requires provincially legislated employers to give their employees a minimum amount of notice before terminating an employee.
BUT, it is important to know that, under case law, many employees may be entitled to much more reasonable notice or severance because the Code sets out only the legal minimums.
Are There Situations Where an Employer Does Not Have to Give Me a Termination Notice or a Severance Package?
Under the Code, employers are not legally required to give you termination notice or a severance package in certain situations, for example, if:
- you have been employed for 3 months or less
- you have been terminated for just cause
- you refuse reasonable alternative work
BUT, under case law or common law, you may still be entitled to termination notice so it is important to discuss your individual circumstances with an employment lawyer.
Do I Have Employment Termination Rights If I Never Signed An Employment Contract?
If you have not signed a contract of employment, you are still entitled to reasonable notice. If no notice was given, your employer may be obligated to pay you in lieu of providing you with notice.
What Are My Legal Obligations After Being Terminated?
Even if you have a strong case against your employer for wrongful dismissal, you still have a duty to take all reasonable steps to lessen damages. This means that you must look for suitable alternative employment.
What Is Termination with Just Cause?
Just cause termination refers to when an employer has ended your employment due to serious misconduct or poor performance and progressive discipline. If your employer had just cause (a valid reason) to terminate your employment, you will not be entitled to any reasonable termination notice or severance pay.
If you do not think your employer had just cause to fire you, you should contact me and we will review the facts and provide you with a legal opinion for a reasonable flat fee amount.
Are There Situations Where the Code Prohibits Employers from Terminating Employees?
Under the Employment Standards Code, an employer may not terminate your employment in certain situations. For example, your employment cannot be terminated if you have started maternity/paternity leave.
Pay Attention to the Termination Clause in Your Employment Contract
Sometimes, your employment contract will contain a ‘termination clause’ which may significantly lessen your entitlement to reasonable notice and/or severance pay. BUT, it is very important to get the termination clause reviewed by an employment lawyer, as sometimes the language used in the termination clause is not legally enforceable, which essentially means that you may still be entitled to reasonable notice or severance pay despite what the contract may say. If you are terminated with or without cause, it is a good idea to email me as soon as possible so that I can help you review your employment contract.
Need Legal Help With Employment Termination Rights?
Are you not happy with how much advance notice or severance you were offered by your employer? You may be able to sue them for wrongful dismissal damages. The case law surrounding what is reasonable notice is quite complex and can depend on many factors including your title, age, and your length of service, amongst other factors.
Sunstone Legal, working in association with West Legal, in Calgary, Alberta is pleased to provide you with a range of services in the area of employment law including:
- Reviewing your employment contract and giving advice on how much severance pay you are entitled to
- Reviewing severance offers on a flat fee basis, and negotiating severance on a further contingency basis (you do not pay anything more unless we can get you more)
- Litigation services for wrongful dismissal and human rights violations