Despido injustificado

If you have lost your job, you may feel like the worker in the painting shown here, Le Chômage (‘Unemployment’) by Louis-Adolphe Tessier. Though capable and eager, with much to offer, he sits isolated, dejected, bewildered. The tool of his trade lies at his feet, and his only companion is a glass of liquor.

His feelings, and yours, are understandable. But drinking and worrying are no way to move ahead after losing a job. Put down the liquor and pick up some law.

Can I be fired?

In general, yes. Usually both the employer and the employee can terminate the employment relationship.

But there are limits. First, your employer may not violate your human rights, such as by firing you for illegal discriminatory reasons. Likewise, your employer may not retaliate against you for lawful conduct such as taking parental leave.

Second, your contract of employment may restrict the employer’s right to dismiss you. So may any collective-bargaining agreement. Even your employer’s policies may give you some rights.

Third, your employer may have to give you reasonable notice of termination, so that you have a fair chance to find another job while you are still receiving wages. Reasonable notice often lasts for many months.

What should I do if I lose my job?

First, do not do anything rash. In particular, do not sign papers without consulting a lawyer. Your employer may offer you money for signing something hastily, but accepting the offer could be a big mistake. Just say that you need time to review any documents with your lawyer.

Keep any papers that you receive. Your employer should give you written notice of termination and also a document called a Record of Employment, possibly also some papers about benefits.

You may be eligible for money from Employment Insurance. Apply free of charge via the Internet. Various programmes, some of them free, may help you to find a new job, change careers, return to school, or start a business.

Consider seeing a physician about any health-related issues, including emotional distress, that you may be experiencing. Seek support from friends at this difficult time.

Also consider consulting a lawyer about your rights. You may be entitled to much more than you expect. If your employer has offered you a severance package, have a lawyer review it and advise you on your rights and options. Very often a good lawyer can win more for you through negotiation or, less often, litigation.

How much notice of termination should I get?

Your employer does not have to give you any notice at all if you are fired for just cause—serious wrongdoing such as theft from the employer, sabotage of the employer’s business, or wilful disobedience. Your employer may also not have to give you notice if your job lasted fewer than 90 days, if your employment was seasonal, or if you failed to perform the work to the required standard after being given a fair opportunity to do so.

In most other cases, your employer owes you reasonable notice. The employer may require you to go on working (this is known as working notice) or may simply pay you the money and terminate your employment immediately.

In Alberta, the Employment Standards Code defines the minimum that your employer must pay you—from one to eight weeks, depending on the duration of your job. Beyond that, however, you are probably entitled to reasonable notice at common law (decided by the courts), which tends to be much greater. Lawyers and judges often speak of a “rule of thumb” that gives you one month’s notice for each year of employment with your employer. No such rule of thumb exists in law; however, in practice, reasonable notice at common law often comes close to one month per year.

The amount of reasonable notice depends on your age, the nature and duration of your job, the availability of similar jobs in your area, and other factors relevant to the time that you are likely to need to find a new job comparable to the old one. Often reasonable notice lasts for months, even as long as two or more years. Most claims to reasonable notice are resolved through negotiation, but sometimes a court must set the amount.

A skilled lawyer can help you to get what you deserve and avoid mistakes that could reduce or eliminate your entitlement.

What else can I get if I am fired?

Your employer must promptly pay you what it already owed you, such as your wages up to and including the date of termination, your accrued vacation time, and any reimbursements for approved expenditures. Sometimes you are entitled to continued benefits for a period. If you have a pension or retirement account through your employer, you may be able to transfer it to a plan of your own.

In addition to reasonable notice or any negotiated severance package, you may also be able to claim damages, including aggravated damages and punitive damages. You may even be able to get your job back. Consult a lawyer to understand your rights and options.

What do I get if I quit my job?

Usually nothing. In fact, if you quit, you may have to give your employer a couple of weeks’ notice.

You may be able to claim damages, however, if your employer made a drastic change to the terms of your employment without your consent, such as demoting you, harassing you, or greatly reducing your salary. That change may constitute constructive dismissal, which is tantamount to firing you. You may be able to quit and still claim damages as if you had been fired, including reasonable notice. Get legal advice, however, before making this move. A court might not agree that you were constructively dismissed.

My employer discriminated against me.

Discrimination in employment on the following grounds is generally illegal in Alberta:

  • Race
  • Colour
  • Religion
  • Gender, gender identity, gender expression
  • Sexual orientation
  • Pregnancy
  • Marital status or family status
  • Physical or mental disAbility
  • Age
  • Ancestry
  • Place of origin

Discrimination is a great evil in Canadian society. Fortunately, you may have recourse if you are the victim of discrimination in employment. You may be able to recover money for damages and even to get your job back.

Consider arranging an initial consultation in order to find out what you can do about discrimination.

How much will your services cost?

I can answer that question better during a one-hour initial consultation, which I offer at a discounted rate. You can get a lot of good advice for an affordable fee during our initial consultation.

If we work together on your matter, I may charge by the hour or set up a contingency arrangement whereby my fees will be a percentage of any amount that I win for you. I understand that you may not have much money after losing your job, and I shall try to find an affordable solution for you.

Many clients gain tens or even hundreds of thousands of dollars thanks to my advocacy. While I cannot promise that you will obtain the same result, you will learn during an initial consultation how strong your case is and what you can expect to achieve.

Louis Adolphe Tessier

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