Employment litigation
The employee who resigns
If an employee quits or resigns, he or she must be paid accrued earnings within seven days. Sometimes, the employee must give prior notice of resignation, especially if the employer depends on the employee and will suffer an economic loss if the employee resigns suddenly. If sufficient notice is not given, the employer can sue for damages, but the employer cannot withhold accrued earnings.
The employee fired for “just cause”
If an employee is fired for “just cause”, he or she is entitled to the same as the employee who quits - accrued earnings. What is “just cause”? If the employee does something so damaging that it destroys the employment relationship, the employer can acknowledge the employee’s fundamental breach of contract and fire the employee. It is a high test and analogous to a student being expelled from school: a student needn’t be an “A” student, or even a “B” or “C” student; all the student needs to obtain is a marginal pass; one failed test is not enough and the student must be clearly warned and show no signs of improvement. To some extent, the same applies when dismissing an employee.
The employee fired without “just cause”
An employee who is fired without “just cause” must be given sufficient advance written notice to make alternate arrangements (i.e. look for another similar job). If the employer fails to give sufficient notice, the employee is entitled to damages. The damages are calculated by multiplying the number of weeks of notice that should have been given by the gross earnings of the employee (including bonuses, pension contributions, etc.)
Notice periods:
In Ontario, the Employment Standards Act sets out the minimum notice periods that should be given before terminating an employment - this is only a minimum, and courts require employers to provide considerably more notice. How much notice is enough? It depends on a number of factors, related to how easily the employee could find another similar job, the employee’s age, work experience, years of service, specialization and economic circumstances.
Human Rights Code:
Also, under Ontario’s Human Rights Code, an employee is entitled to damages and other remedies if he or she is fired, suffers adverse treatment, or harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.