Wrongful Termination and Workplace Rights Explained

Andrew: Thanks for joining us. Welcome Teresa. Teresa Park's, a lawyer with our firm. Today we're gonna talk about some of her practice. 
Teresa: Hi there, my name is Teresa. I specialize both in personal injury as well as employment law. 
Understanding Employment Law
Andrew: Employment law is a broad category. Why don't you share with us specifically what you do in employment law?
Teresa: Absolutely. I mean there realistically is two sides to employment law. You can represent the employer as well as the employee, and my focus is solely on the employees. 
Andrew: And what types of cases do you take on behalf of employees? 

Wrongful Termination Explained
Teresa: A large portion of my files are in wrongful dismissal and constructive dismissal. So anyone who was terminated with or without just cause. We try to get the best results for them. 
Andrew: So it's mostly like wrongful termination. 
Teresa: Exactly, yes. So anybody who has been terminated let go or put on any type of leave really, or people that I represent. 

Human Rights Violations in the Workplace
Andrew: Another phrase I hear in employment law is human rights violations and things like that. Is that part of wrongful termination? Or is that a different category altogether? 
Teresa: Yeah, absolutely it could be involved in the wrongful termination. So I see a lot of clients that come to us where the employer has been really egregious in the matter. They'll either fire them without any severance, without any real acknowledgement of what they've done, or they will fire them after they've actually done something egregious in order to bury what they've done. So in terms of that, we can go to the tribunal and bring action forward as well. 
Andrew: Okay. And tell me a little bit about what would be a typical human rights violation. What kinds of things are we talking about? 
Teresa: I see a lot of files with sexual harassment, any kind of bullying and, just destructive behavior where a person would just feel very insecure, anxious to go back to work that can cause things like depression and someone to quit because they can't handle the harassment.
Andrew: What about discrimination? Is that part of that too? 
Teresa: Discrimination is a part of it and we see it unfortunately quite often, but sexual harassment is pretty top on the list. 
Andrew: Alright. Discrimination ones, would that include age and gender and religion and the typical things we think about? 
Teresa: Yes, and it can be actually as subtle as emails or text messages regarding someone's race or sexuality or anything about their looks. It really is a quite exhaustive list of the ways that people can be harassed at work and discriminated against. 
Andrew: So you mentioned you represent the employees? 
Teresa: Yes. 
Andrew: That has been either terminated or discriminated against in their workplace. I have a couple of questions from that. So who's the defendant that the claim is being brought against? A follow-up to that is, what's the goal in these employment cases? What are you trying to obtain for your clients? 
Teresa: Great questions. 

Severance and Compensation
Teresa: What people don't know actually is if you are unionized, you have both an action against the employers themselves as well as the union. So there are completely separate actions and you would be able to get damages from both streams.
Andrew: When you say damages, you mean money. 
Teresa: Exactly. Okay. 
Andrew: Money. How do you determine how much money a person's entitled to in an employment type case? 
Teresa: That's where it gets a bit more complex. So under the ESA, which is the Employment Standards Act of Ontario, you are entitled to a certain amount, depending on how long you were at the firm, whatever egregious matter may have happened.
However, what a lot of people don't realize, and this is where lawyers become really important, is that you also have a common law claim. You can't claim both at the same time, but the rules of the common law actually allow you to get quite a significant amount, more of severance. Again, depending on how long you were at the firm, the amount that you were making, and again, on top of that, you can have a union action if you are part of a union.

The Importance of Legal Consultation
Andrew: Okay. And what if somebody feels like they were wrongfully terminated, but the employers offered them money at that point should they accept the money or would you recommend always speak to a lawyer if you're offered money, if you feel like you've been terminated wrongfully. 
Teresa: So my golden rule of thumb is always have your severance package looked over by a lawyer or the termination letter as well, because generally there is going to be more on the table no matter how reasonable the offer actually looks to you.
Andrew: Wow. So it's definitely worth consulting with a lawyer, even if your employers made you an offer. 
Teresa: Absolutely. And I think it also protects your rights because some employers will put restrictions on what you can and cannot do after the fact, and you wanna make sure that those don't infringe on your own rights after you leave, once you transition into another role.
Andrew: Now in personal injury we're used to, whenever there's an exchange of money, there's typically a release side. 
Teresa: Yes. 
Andrew: Is that something that also comes up in the employment setting? 
Teresa: Well essentially that is coupled in with the termination letter. That's what you will see from your employer. It could be an anti competition clause, or you could literally be signing away any kind of stocks that you may have attained. Likely a lawyer will know exactly what to look for, 
Andrew: So if they're presented with a document and asked to sign, that should go off as like an alarm or a yellow flag and say, no, I should probably get this looked at. 
Teresa: Being terminated is such a traumatic event anyways. It is really important to not only make sure that your rights are preserved, but to have some kind of security in the fact that you're walking away with having the best representation and the best case scenario and already in a pretty unfortunate situation.
Andrew: So what do you look for? If someone's calling and they have a potential case or they think they have a case, what kinds of things do you look for? What should they look for as potential signs or flags that I might have a wrongful termination case here? 
Teresa: The first thing I would do is check the termination letter. Generally speaking, they will outline exactly what you're being terminated for and they will also give you an updated report or anything like that if there were any investigations to have happened, et cetera. So that is the first thing that I look for, is I ask for the termination letter so I can exactly determine the reason.
And then from there we unpack the story. So this is where it's really important, where you get a lawyer that listens. Every little thing truly matters because it's about building a narrative of why you were singled out. And if for example, it wasn't just you and it was a whole department, then it gets to a bigger territory.
Andrew: And what if it's a small business that maybe isn't as formal? There's no termination letter, just a manager saying you're fired. 
Teresa: Absolutely. It becomes more difficult when there isn't a termination letter. But under the law, under the ESA, you still have rights and you have rights to severance, and you will likely have rights to a notice.
Despite the fact the company may be small and a mom and pop shop doesn't preclude from the fact that you still deserve your severance. 
Andrew: Is there any money in addition to severance that people can claim in the right circumstances? 
Teresa: So it goes back to the human rights aspect. So when there's an egregious act on behalf of the employer, what we'll do is that we will add the bad faith or human rights violation.
And in that way, we can get a little bit more for our clients because of all the trauma that they've been through. 

Benefits of Contingency Fee in Employment Law
Andrew: And what about people that maybe think they have a case, but they're afraid of the cost of hiring a lawyer? How do employment lawyers get paid? 
Teresa: Yes. This is a very difficult topic for a lot of clients because again, they're coming to us in a position where they've just lost their jobs, and likely they won't be able to afford the hourly fee or the retainer. So generally, in most employment law firms, what they'll do is they'll ask for an upfront retainer, and then from then on they would take away from each hour that they work. 
However, the problem with that is that hourly is very expensive. Employment lawyers are not cheap, so it actually is, for me anyway, a barrier to justice. And the beauty of having contingency, which is what our firms offer, is that we're able to work on your file as much as it needs. It just makes sense. People are coming to us in a position where they just lost their jobs. They're in a very unfortunate financial situation, and a lot of people don't have the funds to give out $5,000, $10,000 at a time in order to retain a lawyer.
So the benefit of the contingency fee is that we are able to work on your file as much as it requires as much attention. We're able to be super diligent with your file and it won't cost you a dime until we make sure that you get a settlement. 
Andrew: Is your service doing it on contingency fee, is that particularly unique in the area of employment law?
Teresa: Absolutely. It is very uncommon for employment lawyers to do contingency. 
Andrew: The other benefit to that though is. If you're taking a case on contingency fee, if you're actually accepting a case, you've made at least an initial assessment. I know you can't predict with certainty till you start doing discovery and really digging into a file, but you've at least made an assessment at the outset that this claim may have merit.
That also can give the client a bit of peace of mind. It's not cost them anything. The lawyers invested in it, spending money and time and effort to try to give me a resolution, and so that should give the client some more confidence and peace of mind too that they pick the lawyer that actually believes in their case, which is similar to what we do at personal injury.
Teresa: Absolutely. WhenI do my consultations, I am very thorough. In order to determine to make sure that it is a viable case and that I am the right lawyer to bring you the settlement that you deserve, my consultations will go on for quite some time. What that does is give you a pretty good, accurate idea on where I would take it if it's a possibility and the strength of your case.

Can I Always Sue My Employer If I've Been Wrongfully Terminated?
Andrew: Are there some misconceptions about employment law that you can think of? 
Teresa: Yeah, I think the biggest misconception is that you can always sue your employer, but there are quite a few instances where it's not viable. For example, if you were fired within your probation period, whatever that may be, and you signed off on your contract, there's really no way for you to really seek severance. Also, when depending on the length of the probation, it wouldn't actually fall under what the ESA requires for you to seek severance. 
Andrew: And that kinda leads me to another thought and question. Does the length of time that you're employed with an employer, does that have a bearing typically on the merits of the case or the value of the case? Is that something you look at as well? 
Teresa: When we're talking about just severance, the length of time you work, for and with an employer is the number one factor in determining the amount that you are entitled to actually. Depending on if you pursue severance under the ESA or the common law, the amounts that you can claim for is different, but a large part of that is how long you are working for the employer, and if it's under common law, you can also look at, your seniority level and your age and how difficult the market is to penetrate after you leave.

Wrongful Termination in Personal Injury Cases
Andrew: Another question I have now is something that we see as a pretty common scenario where we may represent someone who's involved in a car accident or a slip and fall accident. They have injuries, they've returned to work. They're not quite as good of an employer as they used to be. They're struggling, they might be taking medications, they might be taking numerous days off. Then ultimately they're let go or fired. 
Just in that sort of scenario, and I know it's not specific, it's general, but what kind of employment issues might arise in that scenario where somebody has had an injury and then it impacts their ability to work?
Teresa: That's a great question because it's something I really want everyone to know. Your employer has a duty to accommodate. So for example, let's say you were in an accident and you're a cashier and you can't stand on your feet for X amount of time and you request a chair. Just so that you can sit and scan the items, and if they refuse, that is them violating their duty to accommodate.
There are a lot of things that I understand people may be concerned about bringing to their employer, but ultimately speaking under the law they are responsible for essentially taking care of you and making sure you are able to work in that job that you were hired for. 
Andrew: And what about, here's another scenario that sometimes ties into our other practice areas, personal injury, where someone works for a company, they've worked there for a long time, they might be close to retirement age. Now the accident and the injuries are impacting on their performance at work, they decide to retire. 
What's your view on that? Should they speak to a lawyer before making that decision to retire? And if so, why? 
Teresa: Before you make any kind of big life changes, it's really important to at least have a lawyer think it over, look it over and see what your situation is. But again, going back to if you have to retire earlier because your employer is failing to accommodate you, that is a possible stream that we can go into. 
Andrew: Yeah, and that's the same advice I give our clients on the personal injury side. If you're gonna stop working, talk to us first, because sometimes people don't realize that they actually have other benefits available through work, short term, long term disability, and they choose to retire. Then they've lost out on this other income stream potentially for those last few years. 
Teresa: Especially with employment law, because there are so many streams in which you can argue within. It gets very complicated. A lot of misconceptions that I find in employment is that people think, I can just sue my employer only.
But again, there are union actions, there is human rights action. It's really nice when you can speak to a lawyer so Basically all the cards are on the table before you make any big life changes. 

Union Actions in Employment Law
Andrew: Are the employers that are unionized, are those more complex employment cases or are they simpler or the same, or how would you describe that?
Teresa: It's yes and no. Sometimes it gets more complex because now you're dealing with what the union says compared to what the employer says. But because they're technically different actions, it doesn't become significantly more complicated, but there are times where, you know, maybe the union and the employer don't agree and then it gets a little bit muddied.

How Do I Find The Right Employment Lawyer?
Andrew: So if somebody's out there listening to this or watching this and they're considering looking for an employment lawyer, what kind of advice would you suggest in terms of finding the right employment lawyer for you? 
Teresa: I think with employment law, it's different from other streams. You found a good lawyer when they ask an enormous amount of questions because they need all the information to give you all the cards that you're able to pursue, all the paths that you can. Whereas if a lawyer just asks a couple of questions, for example, how much do you make? How long have you been there, then they're not gonna get you the best results because they may be missing core damages such as human rights issues.

Employment law is quite complex in a sense. There are different paths and streams that you can take, but because of that, it is a very fruitful situation because you are able to collect in different ways. A lawyer who practices employment law has to know what those are and can only determine that once they get all the information from you as a client.

How Much Severage Can I Get?
Andrew: What kind of questions do your prospective clients usually have? 
Teresa: The main one that I get is how much severance can I get? I get asked that quite a lot, and of course, as every lawyer will say to any legal advice, it's, it depends. I have to ask you all the relevant questions in order to determine that, because again, under different laws, the ESA, common law, et cetera. These numbers change. For example, if your company has a payroll of over $2.5 million, your severance amount also changes. 
So there are little things that will determine how much your severance will be, and only a well, a formed lawyer will know that. And only a lawyer that has asked you all the right questions will know that.
Andrew: I'm assuming you can't determine with specificity at the initial meeting. But is that something that you can generally get a sense of when you first meet a client and ask the right questions? 
Teresa: I can generally give you a range. I can also give you quantums of what the courts have awarded. For example, if it's a human rights violation. I can tell you, in regards to this, the courts have awarded $5,000, $10,000,$15,000, so I can give you those vague numbers. But like you were saying, it's impossible for me to tell you exactly the amount, but I can at least give you a range so you can determine if this is something you wanna pursue or not.

Constructive Dismissal and Toxic Work Environments
Andrew: So a term I hear sometimes is constructive dismissal. Explain what that is. 
Teresa: Yeah, absolutely. I think a lot of people. Either have never heard of constructive dismissal, or they'll use it interchangeably with wrongful termination. Essentially, constructive dismissal is when your employer makes your work condition so intolerable that you're forced to resign or quit.
This could be something like making the environment very dangerous, putting you in a situation where you may lose your license if you continue doing, and it is a very real thing that you can bring up. It is just as important and just as viable as a termination case. 
Andrew: Wow. So even if you quit, because let's call it a toxic work environment, you might have a claim.
Teresa: Absolutely. It's something that a lot of people don't know, but it's important for people to know because the employer does not have a right to make you suffer, to harass you, to bully you and make workplace conditions really dangerous. 
Andrew: And do you think in those contexts that the employer is doing that so that they can avoid paying severance, force you to re leave or retire or quit in a way to save money for themselves?
Teresa: It's a very common tactic that they'll use because a threshold is high. The reality is it is difficult to say, oh, you know this employer forced me to retire early to leave the company. But it is something that is possible. And as long as you have the documentation and you are very diligent with making logs and notes and saving the emails, it is something that you can definitely pursue and I would recommend pursuing.

Documenting Your Case
Andrew: So that was gonna be my follow up question.  If somebody's in a work environment right now and they feel like this is a bad place. I want to quit. What kinds of things can they do to basically develop that case and help you prove that they were constructively dismissed? 
Teresa: The first thing I would recommend for anybody is to reach out to a lawyer.
Again, if you're going to do something as significant as quitting your job, especially due to harassment or, work, workplace safety issues. It's very important that you reach out to a lawyer because we can tell you specifically what you're going through, what you should do. And a large part of it is document collecting, making logs, whenever you have a meeting, even recording it. That is gonna be the foundation for your file. As soon as you can do it and get in contact with a lawyer, the better. Truly. 

Final Advice for Wrongful Termination
Andrew: So if somebody's watching this now and they think they may have been wrongfully terminated, what's the number one advice you would give them? 
Teresa: I would absolutely first make sure that you get some kind of letter of termination, some kind of proof of why you were terminated. A lot of the time employers will try to avoid their obligation by terminating you orally, so you have no proof, you don't really know what's happening. So absolutely the first thing is to make sure that you have documentation, and the second part is to reach out to a lawyer, because there are a lot of things that employers may try to hide because they know that you don't know the law and a lot of people don't. It's a very complex system, and it's only a lawyer that will be able to tell you if you were truly wrongfully terminated. Once they have all the facts. 
Andrew: Thanks for joining us, Teresa. 

Have Questions? Contact Us Today!
Teresa: If you have any questions, please comment below. You could reach us on our website or our 24 hour hotline and you can schedule a free consultation with us
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