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THE QUESTION
I was fired with cause from my remote part-time job. I received no termination pay. A month prior to my dismissal, my boss hadn’t been responding to any of my messages, including sign-offs for important work, which meant that I couldn’t do any work. I’ve been told by legal professionals that I have a clear case for constructive dismissal, but no one could help me because they were too busy. Someone at a legal helpline suggested I go through small claims court. I just need to find someone who will look at my evidence to confirm I have a good case and advise me on the process of filing a claim and how much to claim for, but everyone has turned me down. What should I do?
THE FIRST ANSWER
Tong Jun (Roger) Zhang, employment lawyer, Purnell Employment Law, Calgary
Based on the limited information you provided in your question, I cannot comment on the strength of your evidence or the amount you should claim for. However, it sounds like your employer may have set you up to fail and subsequently terminated your employment with cause.
Terminating an employee for just cause is justified only in situations where there is a fundamental breakdown in the employment relationship. It is sometimes described as the “capital punishment” of employment law. The employer must follow the correct procedure when terminating an employee for cause. While in some rare situations, an employer might be able to justify terminating an employee for a single instance of misconduct, in almost all situations where the employer alleges just cause, they need to show that progressive discipline was applied prior to termination for just cause. This means that the employee must have been made aware of the nature and severity of the alleged misconduct and had a reasonable opportunity and reasonable time to correct their behaviour.
Based on what you described, your employer may have stopped communicating with you a month prior to your termination to prevent you from doing your job properly, only to later terminate your employment for cause. This is what we sometimes call “manufactured just cause.” For wrongful dismissal matters involving termination for cause, the burden of proof is on the employer to demonstrate that they applied progressive discipline. Failing to do so, the employer could be liable for severance and other types of damages.
The process for filing a claim varies between provinces and territories and the specific court where you file. Feel free to contact our office if you need further consultation regarding your matter.
THE SECOND ANSWER
Shibil Siddiqi, employment and human rights lawyer, Progressive Barristers, Toronto
As your query indicates, affordable and effective access to justice remains a significant problem for many Canadians. However, various private and publicly funded services can help with employment law advice. All the services mentioned below can be found easily through an internet search.
You should seek legal advice on filing an employment standards claim as a potentially more efficient and cost-effective way to resolve your matter than a small claims court action.
Private sector lawyers are typically pleased to provide legal advice for a fee; this is, after all, how we earn our livelihood. Some lawyers may decline cases requiring only brief services; such lawyers should honour their professional obligation to provide an appropriate referral. Many firms and solo practitioners offer “unbundled” services and consultations as an integral part of their practice. You may want to narrow your search to such lawyers.
Outside of the private bar, you can contact the Law Society of Ontario’s Referral Service for lawyers who provide unbundled services. Some lawyers on this roster may also offer up to 30 minutes of free legal advice.
JusticeNet is a not-for-profit service with a roster of lawyers providing affordable rates for Ontarians with modest incomes. Income verification may be required to qualify for these “low bono” services.
Pro Bono Ontario co-ordinates volunteer lawyers who can provide up to 30 minutes of employment law advice free of charge.
The publicly funded Human Rights Legal Support Centre provides free legal advice for employment cases involving discrimination under the Human Rights Code.
Finally, Legal Aid Ontario funds free employment law services through community legal clinics for lower-income Ontarians. Proof of low income is required to be eligible for these services.
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