Were you poached from a previous job?
When calculating your severance entitlement, one of the most significant factors to consider is length of the employment relationship. However, length of employment is not be the only relevant factor to consider.
Canadian courts have acknowledged that special protections (in the form of increased severance) can be warranted for employees who are poached from stable prior employment.
Consider the following: an employee of 20 years’ service with Company A is convinced to accept employment with a start-up business, Company B, after being repeatedly called by the Company B’s CEO over the course of several months and offered increasingly favourable compensation packages. This same employee then accepts the offer of employment but is subsequently let go by Company B only six months later.
In such a case, it may be possible to bridge together the service with Company A and Company B. The result: potentially a much greater severance payment than what a pure six-month employee might otherwise be entitled to receive.
In describing how the law treats poached employees, the Supreme Court of Canada has stated:
One such factor that has often been considered is whether the dismissed employee had been induced to leave previous secure employment…In my opinion, such inducements are properly included among the considerations which tend to lengthen the amount of notice required. I concur with the comments of Christie et al., supra, and recognize that there is a need to safeguard the employee’s reliance and expectation interests in inducement situations. I note, however, that not all inducements will carry equal weight when determining the appropriate period of notice. The significance of the inducement in question will vary with the circumstances of the particular case and its effect, if any, on the notice period is a matter best left to the discretion of the trial judge. [Wallace v. United Grain Growers Ltd., 1997 CanLII 332 (SCC) at paras. 83 and 85]
Pay special attention to that last line from the Supreme Court: “the significance of the inducement in question will vary…” This is just one reason why, if you have been poached from stable prior employment only to later lose your job, it is critical to seek legal advice to properly understand your severance entitlements upon dismissal.
Workplace Legal Services for Employees
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Severance Packages
If you do not have a written employment contract, you are entitled to Common Law Reasonable Notice. If you do have a written employment contract, depending on its wording, your entitlement to severance will fall into one of 3 camps.
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Wrongful Dismissal
Wrongful dismissal cases can vary greatly and damages incurred for wrongful dismissal can, as well. Understanding the extent of your rights and entitlement can be difficult. It is always wise to consult a wrongful dismissal lawyer before taking action.
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Constructive Dismissal
Constructive dismissal is a legal term used to describe conduct, or requirements made of you, which are so at odds with your job that it amounts to a fundamental breach of your employment contract. This breach allows you to act as though you have been fired and seek damages.
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Employment Contract Review
If you have a new job, you may be feeling very positive about it right now but it's important to fully understand exactly what you're getting into. Your contract will be in force not just during the first exciting days at your new job, but during times of trouble and at the end of your term, whether you are fired or choose to resign.
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Contractor Status
Many employees are not technically employees but contractors. The difference in what they do at work may be insignificant. You may not know whether you are an employee or independent contractor, or you may have been told that by being a contractor, you will have more freedom.
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Workplace Harassment and Bullying
Legislation and workplace harassment laws, such as the Occupational Health and Safety Act (OHSA), require that all employers have anti-harassment and anti-violence policies in the workplace to protect employees. Despite these measures, workplace harassment, such as workplace sexual harassment, still occurs.
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Canada Pension Plan Disability Claims
CPP's disability benefits are notoriously difficult to obtain. Many clients come to Vey Willetts LLP after they have been rejected, and we help them appeal the CPP's decision. Unfortunately, while they wait for their appeal, they live with delay and uncertainty.
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Employment Insurance (EI)
If you are laid off, fired or let go by your employer, it is important to promptly apply for EI benefits. If you delay applying for benefits beyond four weeks after your last day of work, there is a risk that you may lose your entitlement.
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Human Rights and Discrimination
Discrimination refers to an action or a decision that treats a person negatively as a result, for example, of their race, age or sex. In Ontario, the law protects against discrimination on an enumerated characteristic protected by human rights law.
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Restrictive Covenants
If you have signed, or been presented with, an employment contract that has a restrictive covenant it is important to understand what it means and what potential liability you could face if your employer sought its enforcement against you.
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Denial of Disability Benefits
One advantage of being an employee can be access to short and/or long-term disability benefits. Most of us may never need to rely upon these entitlements. When something goes wrong, however, it is important to ensure you and your family are provided with the financial support you need to focus on what matters: your health.
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Workplace Privacy
Employees are entitled to a certain expectation of privacy at work. How far this extends, however, will vary. Your expectation of privacy may be affected by where you work, the type of work you perform, and workplace policies your employer may institute. Employers are also required to make all reasonable efforts to protect any private information you provide to them.
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Pregnancy and Parental Leave
Understanding pregnancy and parental leave rights in Ontario is essential, as governed by the Employment Standards Act. Eligible employees can access up to 17 weeks of pregnancy leave and an additional 35-37 weeks of parental leave, providing crucial support during these important life stages.
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What is 'Just Cause' for Dismissal?
If you are fired for just cause, you will likely face a number of problems. These can include your former employer refusing to provide severance, Service Canada denying your application for Employment Insurance ("EI") benefits and potential negative work references while seeking re-employment.
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Non-Compete/Solicitation Agreements
Employers often struggle with retaining clients and customers, especially when former employees use their skills and experience to compete in the same market. To address this, employers may require employees to sign non-compete or non-solicitation agreements, which restrict former employees from competing or soliciting business from former clients.
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Without Cause Termination and Employment Standards
Terminating an employee without cause, often due to financial or restructuring reasons, requires adherence to the Employment Standards Act, 2000. This overview explains the employer's obligations for providing notice or pay in lieu and outlines severance pay entitlements in Ontario.
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Employment Standards Act (ESA)
The Employment Standards Act serves as the cornerstone of employment law in Ontario, setting out the minimum standards for most workplaces. It covers crucial areas such as wages, hours of work, and leaves, ensuring fair and equitable treatment for employees.
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Types of Discrimination in the Workplace
The Ontario Human Rights Code outlines various types of workplace discrimination, stemming from negative stereotypes and biases. It covers a broad range of grounds including age, sex, race, disability, marital and family status, pregnancy, gender identity, sexual orientation, and discrimination due to association, each defined with examples to illustrate how they manifest in the workplace.
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Vacation Pay
Navigating vacation pay in Ontario can be complex, but understanding it is crucial for both employers and employees. This guide breaks down the key aspects of vacation pay as outlined in the Employment Standards Act, 2000, ensuring clarity on what's included, what's excluded, and how it's calculated.
A Proven Track Record of Legal Success
Employment and Labour Laws are not always straightforward, but whether you are an employee or an employer, understanding your rights and duties will only stand to benefit you. Reach out to an employment lawyer or labour lawyer today if you have any questions and be sure to get what you deserve and safeguard yourself for the future. The lawyers at Vey Willetts LLP have a proven track record and are happy to assist. Our Ottawa employment lawyers and labour lawyers serve clients throughout both Ottawa and Ontario.
Call us today at 1-800-296-7989 or fill out our online form.