June 9th, 2010
I’m often asked about the law around job references after you have left a job: “Do I have to give a reference?”, “Am I entitled to a reference?”, “What am I allowed to say in a reference?” First off, after a dismissal, employers are NOT legally required to give former employees references. Although, it may be in an employer’s interest to give a reference because it enables an employee to find a new job - thus do what lawyers call “mitigate damages”. That is, an employer can argue that an employee is entitled to less severance pay because they haven’t looked hard enough for a job. Providing a job reference to an employee is one way in which an employer can a former find that new job.
An employer is NOT required to give positive job references - a fact that many employees find surprising. In fact, an employer may find themselves in hot water if they write a reference for an employee, knowing that another employer will rely on that reference, and they write something that they know is untrue. In that case, an employer is “negligently misrepresenting” a former employee’s qualifications.
On the other hand, an employer cannot say malicious things about an employee. If an employer, for whatever reason, will write a negative reference, then they need to make absolutely sure that they can back up what they say. It’s not good enough for them to say: “David was a poor performer.”. It would be more accurate to say, “For two years in a row, David failed to achieve sales targets, of which he himself established.” This enables the employer to fall within the “qualified privilege” and “fair comment” defences to the very complex law around libel and slander law.
These are fairly theoretical circumstances. Basic common sense should rule the day:
- If you can’t say something nice about someone, don’t say it.
- If you are going to say something about someone, stick to the facts and tell the truth.
Posted in Uncategorized | No Comments »
May 31st, 2010
Recently, someone asked me whether they could sue their employer after they were dismissed and the employer provided them with a good reference on LinkedIn. The short answer is: not really. But, like all things legal, it depends. Here are two common scenarios:
Employer dismisses employee without cause, but provides a good reference
Any employer can dismiss an employee, without cause, as long as they ensure that the employee receives proper notice ahead of time that the employee’s employment will end. The employer can choose to require the employee to work out the rest of his or her employment; or, the employer can choose to pay out the employee’s remaining employment salary and benefit entitlement. Either way, the employer is not providing any reason for the termination and is not required to provide one. So, providing a good reference on LinkedIn does not enable the employee to somehow claim extra damages against the employer.
Employer dismisses employee with cause, without notice, but provides a good reference
This is a very unusual situation. But, I am told that it happens. This is a dangerous situation for the employer to be in. By dismissing the employee without giving him or her notice or some severance package, the employer acts as if it had a good reason to dismiss an employee without providing proper notice. These situations are EXTREMELY rare. Situations that would justify this include theft, fraud, significant insubordination, and other behaviour that damage the trust between employer and employee. A simple mistake on the job would not normally enable the employer to terminate an employee with cause and without notice. Employer can choose to make this decision; however, if they go on to provide a supportive reference to the employee on LinkedIn, then the employer can expect the employee to argue something like the following:
- my employer’s reference demonstrates that I was doing a good job;
- my employer does not, and did not, have good cause to dismiss me;
- if my employer wanted to dismiss me, then they should have given me notice;
- I didn’t get notice and so I can sue them for wrongful dismissal
It’s just inconsistent for an employer to dismiss an employee for cause (without notice) and then go on to say how great of an employee he or she was. Furthermore, employers expose themselves to potential (rare, but possible) litigation if their reference and endorsement turns out to be wildly false and misleading.
Recommendation
So, in short, if you’re an employee, appreciate the LinkedIn endorsements whenever and however you get them, even if they’re from an employer who just fired you. Employers - be truthful and consistent about why and how you dismiss your employees, including how you communicate that event to the public.
Posted in Employment Law | No Comments »
March 29th, 2010
We’ve been working hard to improve FiredWithoutCause.com. We’ve recently received our new dataset and are performing our normal quality assurance checks. Once we have them, we can provide all of our customers with fully linked cases rather than a mix of linked and unlinked cases. We will also be rolling out our revamped customer experience which we think you’ll all much prefer. Talk to you soon!
Posted in Uncategorized | No Comments »
March 18th, 2010
Here’s a question that we often get from potential customers:
“If I buy your Severance Package calculator at 39.99 and then later on I wish to use your Customized Counter-Offer Letters package, do I have to pay the full 59.98 or do I pay only the 20.00 difference?”
You only need to pay the $20.00 difference. Just sign in as a Returning Customer by entering the username and password with which you originally registered with us. You can just upgrade your purchase by selecting the Template Counter-Offer Letter and our system will remember you as a returning customer and simply charge you the difference.
Similarly, if you were someone who downloaded our free Negotiation Manual, you can upgrade your account and buy access to our Severance Package Calculator or our Full Package using the same method.
Tags: upgrade severance package calculator counter-offer letters
Posted in Company Announcements | No Comments »
March 14th, 2010
Over the past several weeks, we’ve had a number of customers present us with situations that aren’t strictly situations where they’ve been dismissed, but where there jobs have changed so much that they feel like they’re being squeezed out. It’s no surprise to me. I’ve not conducted any formal studies, but I suspect that with all the reorganizing going on in the workplace over the past year, many people’s jobs have changed a lot.
There are circumstances though where big changes to a job might be considered a “constructive dismissal”.
Employers can fire employees in several ways.
Your boss might actually say, “You’re fired.” Or your boss may fire you in a much more subtle way. In some cases, an employer might change your job so significantly that you are basically forced to quit.
Let’s say, for example, that you’re a line supervisor at a factory and you supervise a large production team - say thirty people. Your employer tells you that because of a restructuring, they want you to work as a frontline production worker. You’ll lose your team and your title, and they’ll reduce your pay back down to that of the frontline worker.
In this situation, even though your employer may not have said “you’re fired,” you may have the right to say that the changes to your job were so significant that it’s like you were fired.
Lawyers call this situation “constructive dismissal.”
In order for it to be considered “constructive dismissal” the change has to have the following characteristics:
- It has to affect only one part of the entire organization - you, or your group.
- It has to substantially alter an essential term of the employment contract. That is, you’re being asked to do something that’s fundamentally different than what you and your employer agreed you would be doing when hired.
The most common situations that are considered to be “constructive dismissal” are:
1. A change in the amount that you’re paid for your service - that isn’t a raise.
2. A change in the geographical location
3. Changes in responsibilities, and
4. Changes in the working conditions
If you were “constructively dismissed,” you may be entitled to the same package you would have received if you had actually been fired. The database and tools at www.FiredWithoutCause.com can help you find out exactly what you are entitled to.
Daniel A. Lublin, a Toronto based employment lawyer, also addresses constructive dismissal in the Q&A section of his blog: http://blog.toronto-employmentlawyer.com/toronto_employment_lawyer/constructive_dismissal/
Farber v. Royal Trust Co., [1997] 1 S.C.R. 846 is an important case addressing constructive dismissal, it can be found at: http://www.canlii.org/eliisa/highlight.do?language=en&searchTitle=Search+all+CanLII+Databases&path=/en/ca/scc/doc/1997/1997canlii387/1997canlii387.html
Tags: constructive dismissal
Posted in Employment Law | No Comments »
January 25th, 2010
Our customers can best use our service if they understand the REASON why courts award severance pay and why employers pay severance packages. You have a contract with your employer. Therefore, if your employer decides to terminate the contract, they have to compensate you for terminating that contract. Severance pay is intended to put you in the same position that you would have been if you had been given proper notice.
Severance pay at its most basic includes the wages and vacation pay that you would have received if you had stayed with your employer during the length of the notice period. Included in your severance pay may also be other employment benefits (like bonuses) that would have been paid to you during this time.
This means that it should be more than just your cash salary, you have the right to receive all of the benefits and other compensation you would have received if you had kept working up to the end of your notice period.
If, for example, your employer owes you a notice period of four months, and your employer chooses to pay you a severance package, your payment should be more than four months’ of your salary.
It should also include:
- bonuses you would have earned and been paid during the four months
- stock options you would have earned that would have vested during the four months
- RRSP contributions
- medical coverage
- extended medical coverage
- dental coverage
- long-term disability insurance
- short-term disability insurance
- life insurance
If you have a fixed-term employment contract, severance pay is based on the wages and benefits that you would have earned until the end of the fixed term, unless there is an early termination clause.
Thicken My Wallet, a blog providing general financial advice, gives general advice on severance pay here: http://www.thickenmywallet.com/blog/wp/2009/02/10/severance-pay-what-am-i-entitled-to-part-i/
Tags: dismissed, laid off, severance, wrongful dismissal, wrongful dismissal duty to mitigate mitigation severance package
Posted in Employment Law | No Comments »
January 19th, 2010
The Lawyers’ Weekly Magazine, one of Canada’s most widely distributed legal publications for lawyers, featured FiredWithoutCause.com in its most recent article on employment law. We’re very pleased to be seen as a complementary service to traditional legal services delivered by lawyers rather than as competitors to lawyers. For those individuals who simply cannot afford a lawyer or for those people who just want to know their basic rights before consulting a lawyer, the article, I think, fairly presents us as a low cost solution for those situations.
To read the articl
Next week, we’re back after our Christmas break with some more information on employment law.
Posted in Company Announcements | No Comments »
December 28th, 2009
The National, the Canadian Bar Association’s magazine has recognized http://www.firedwithoutcause.com:
By automating and streamlining necessary but straightforward and/or repetitive tasks, sites such as … FiredWithoutCause can offer legal services more quickly and cheaply than the average law firm associate, or even the average legal secretary. And by lowering or outright eliminating the bar on legal fees, they can tap into … the average consumer or small business owner who would never consult a lawyer because they find lawyers too expensive. (S. Goldberg, “The new competition”, National, December 2009, pp. 8-9)
At Paradigm Shift Solutions, we believe that improving access to justice in Canada will not improve by asking lawyers to increase pro bono or volunteer work or working for less. We can improve access to justice by creating new business models that empower Canadians with legal information and provide proportionately priced services.
Posted in Uncategorized | No Comments »
December 28th, 2009
A big thank you to http://www.law21.ca and Jordan Fulong for nominating our blog for the 2009 Clawbies. We didn’t seek or expect the nomination, but we thank this prominent Canadian legal blogger for noting us. We intend to keep on giving Canadians plain language information about severance packages, wrongful dismissal, and employment law.
http://www.law21.ca/2009/12/07/2009-clawbies-now-accepting-nominations/
Posted in Uncategorized | No Comments »
December 21st, 2009
We here at FiredWithoutCause.com want to wish everyone the best of the holiday season. We will be taking a short holiday from blogging until the new year. However, when we return, you’ll see more information about calculating severance packages, wrongful dismissal, pregnancy and severance, negotiation techniques, and so much more. We look forward to seeing you again in 2010!
Posted in Uncategorized | No Comments »
|
