So, the worst has happened. You’ve been fired without notice or severance.
You know you’re entitled to something, but how do you get it? A lawyer is expensive; even if they can get you more money, their bill may eat up everything you might get. As an alternative, The Ontario Ministry of Labour (“MOL”) has a free program where you can talk to an expert in the Employment Standards Act, 2000 (the “ESA”). They may be able to help you get your full entitlement to notice and/or severance pay. With this as an option, why would anyone go to a lawyer?
Sure, the MOL can help a dismissed employee for free. However, the maximum relief it can order is limited to the employer’s compliance with the ESA. When it is a situation where there are unpaid wages/overtime that may be enough. Conversely, in a dismissal, the MOL can only order compliance with the ESA. It cannot order any remedy under the common law, including notice and damages for bad faith or human rights breaches, all of which may be far more substantial than an employee’s ESA entitlements.
Giggly Panda Baby Spa Inc. v Breanne Norris
The case of Giggly Panda Baby Spa Inc. v Breanne Norris is an example of what the employee gave up by proceeding via the MOL.
The employee worked for the employer from August 2020 to July 2022, and at her request, was never scheduled to work Fridays.
July 1, 2022, was a public holiday and a Friday, and the employer was understaffed that day. The employer asked the employee if she would work on the holiday. The employee confirmed she would – if she received double pay for the day. The employer refused.
On the employee’s first day of work after the holiday, July 5, 2022, her manager escorted her into a small room and confronted her for “having tried to extort him” regarding July 1. The employee was so alarmed by this that she filed a workplace harassment complaint with the MOL. An inspector attended the workplace the next day and prepared an inconclusive report.
On July 7 the employer issued a written warning to the employee, alleging that she had engaged in “Blackmailing the owner to cover a shift by asking double pay time after knowing there’s no one to cover the shift.” The employee refused to sign the warning.
The employer then dismissed the employee on the same day, issuing a termination letter stating that the basis for the dismissal was:
“Blackmailing the business by Text Message to cover a shift, by asking double pay time after knowing there’s no one to cover the shift, which is Extortion, commercial pressure and considered criminal offence…”.
The employer did not pay the employee’s entitlements under the ESA, claiming that it had dismissed her for willful misconduct.
Application for Review before the Ontario Labour Relations Board
The employee filed a complaint with the MOL and was successful. The employer brought an Application for Review before the Ontario Labour Relations Board (“OLRB”).
The OLRB found that the employee’s conduct was neither extortion nor blackmail and was instead a negotiation where the employer was seeking to convince an employee to give up her entitlement to a holiday and work.
The employer submitted several additional allegations about the employee to the OLRB, including that dismissal had come after poor performance on her part. The OLRB noted that there was no evidence of any prior discipline or warnings of this alleged poor performance – but that the employer awarded the employee a bonus in June for doing a “fantastic job”.
The OLRB found that the employee had not committed willful misconduct, disobedience, or willful neglect of duty under the ESA. As a result, it awarded her compensation of two weeks’ pay in lieu of notice. She did not receive anything else.
At common law this individual may have been entitled to several months of reasonable notice – well more than the two weeks they were awarded. The employer’s bogus assertion of willful misconduct may also have entitled the employee to an award of damages for bad faith, over and above their entitlement to reasonable notice.
This is an egregious set of facts that an experienced employment lawyer would have had a field day with. An employee made a reasonable request in response to their employer asking them to work on their day off. Instead of accepting this fact, the employer fired them, without notice or compensation in lieu and described their actions (in writing!) as blackmail and criminal. This was after a glowing track record of success with the employer.
Finally, had the matter proceeded to Court, the employee would have been able to recoup at least some of her costs. None of these were available as remedies to the MOL – and once a complaint for termination pay is filed through the MOL, the same matter may not be addressed at court.
By proceeding through the MOL this individual may have left money on the table.
Given the facts of this matter, it is likely that an employment lawyer could have obtained something over and above the employee’s statutory entitlements on dismissal, possibly through a negotiated settlement.
The decision does not indicate that the employee had consulted an employment lawyer – but if they had, they may have advised her of all her options, and what she might be giving up by proceeding through the MOL. It’s okay to settle for less – as long as you know you’re making that choice.
At Rudner Law, we have experience representing both employees and employers in litigation. You can visit our website to learn more about employee-side litigation and employer side litigation, and dismissals.
If you have any questions about your situation or if you would like to get legal advice, please feel free to contact us.