Unfair Termination: What Employees in Ontario and Nevada Should Know

Amy Wilson
Sep 15
8 min read

An Article by Our Guest Writer - Amy Wilson

Fired in Canada? Your rights are stronger than you think. Unlike U.S. at-will employment, Canadian law requires employers to provide adequate notice or severance pay. Wrongful dismissal isn't about why you were fired; it's about being paid unfairly. Employers often offer only the minimum required by law, but you may be entitled to much more under Common Law, based on factors like age and tenure.

The awareness of your rights upon termination of services will safeguard your financial stability and future employment prospects. Canadian (both federal and provincial) employment laws and those in Nevada vary greatly and pose different challenges and prospects to workers in both regions.

If your employer forced you to quit by making major negative changes, that's "constructive dismissal." Before you sign anything, document the termination and consult an employment lawyer to secure your full compensation.

Read on to Learn More.

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I. Legal Protections Against Wrongful Termination

The most basic distinction between Ontario and Nevada is how they address termination of employment. Ontario adheres to a model where termination is allowed only for “just cause” or else reasonable notice and severance pay need to be provided. This system has much better worker protection compared to the at-will employment model working in Nevada.

Nevada has at-will employment statutes in force, which means employers can typically dismiss workers for any cause or no cause whatsoever. There are however exceptions that apply to prevent discrimination against workers, retaliation, and breach of public policy. These exceptions include termination on account of protected features like race, gender, religion, age above 40, disability, sexual orientation, and gender identity.

In unfair termination cases, qualified legal representation is vital. This is especially true in cases where criminal prosecution might affect employment status. In Nevada, it’s essential to look for a professional’s help, like Spartacus Law Firm in Las Vegas, which can offer services to help get an idea about how legal issues can influence professional rank and career prospects later on. That way, people who encounter criminal charges and employment issues simultaneously can get systematic legal services.

For employees in both jurisdictions, keeping a record of possible wrongful termination is paramount. This includes preserving emails, performance appraisals, witness testimony, and complete records of discriminatory remarks or retaliatory actions. Keeping this evidence in hand can help future litigation and get quantitative support in securing better severance arrangements.

II. Calculating Your True Severance Entitlement

Workers in Ontario who are unwary of their common law entitlements receive significantly lower sums, often receiving the statutory minimum under the Ontario’s Employment Standards Act (ESA). Common law reasonable notice are often significantly higher; it could be up to 24 months or more of pay out depending upon bardal factors such as age, duration of service, job title, and state of the labor market.

Severance calculations in Ontario cover two potential sources: ESA minimums and common law reasonable notice. The Common law reasonable notice being the default position, unless there's a valid termination clause in the employment contract that opts out the Common law. ESA severance requires a minimum of five years’ service and applies where payrolls exceed $2.5 million or mass layoffs are involved with 50+ workers being terminated. Calculation is made up of regular week wages multiplied by the number of service years but capped at a maximum of 26 weeks. However, common law reasonable notice pays out a great deal more generously on average approximately a month’s pay per year of service based on the bardal factors.

Nevada’s wrongful termination settlements generally range from $5,000 to $100,000 with some reaching millions in severe cases. Compensation factors include lost wages, benefits, emotional distress, medical expenses, and punitive damages when employers engage in particularly serious conduct. The calculation considers the employee’s salary, benefits package, career prospects, and the retaliation evidence. Nevada settlements may include back pay, front pay (future earnings), and compensation for lost benefits like health insurance and stock options.

Understanding the distinction between different types of compensation is equally important in both states. In Ontario, under the ESA, termination pay covers the notice period, while severance pay provides additional compensation for long-service employees; whereas under the Common law, the bardal factors determine the appropriate reasonable notice period.

III. Navigating Termination: Your Rights as a Federally Regulated Employee in Canada

Employees in federally regulated sectors—such as banking, telecommunications, and air transportation—are afforded unique protections upon the termination of their employment. Unlike their provincially regulated counterparts, these employees often have a critical choice between two distinct legal avenues: a civil claim for wrongful dismissal under the common law, or a statutory complaint for unjust dismissal under the Canada Labour Code.

While these paths share some similarities, their procedural differences and potential outcomes are significant.

A. Wrongful Dismissal vs. Unjust Dismissal: The Key Distinctions

A wrongful dismissal claim is a civil action commenced in a provincial superior court. The primary focus of such a claim is to secure damages equivalent to the reasonable notice of termination that the employee ought to have received under common law. This process involves court filing fees, formal legal procedures, and adherence to the rules of civil litigation.

Conversely, an unjust dismissal complaint is filed with the Canada Industrial Relations Board (CIRB) under Division XIV of the Canada Labour Code. This statutory remedy offers several procedural advantages:

Accessibility: There are no court filing fees required to initiate a complaint with the CIRB.
Efficiency: The adjudication process is generally less formal and more streamlined than a court action.
Broader Remedies: A significant distinction is the range of available remedies. While a wrongful dismissal claim typically results only in monetary damages, an adjudicator under the Code has the power to order the reinstatement of the employee, in addition to or in lieu of financial compensation.

B. Eligibility for an Unjust Dismissal Complaint

To be eligible to file an unjust dismissal complaint, an employee must meet specific criteria under the Canada Labour Code. The employee must have:

Completed at least twelve (12) consecutive months of continuous employment;
Not been employed in a managerial capacity; and
Been terminated for reasons other than a lack of work or the discontinuance of a function (i.e., a genuine layoff or restructuring).

C. Important Alternative: Protection Against Reprisal

It is crucial to note that even if an employee does not meet the eligibility requirements for an unjust dismissal claim (for instance, having less than 12 months of service), they may still have recourse under s. 246.1 of the Canada Labour Code.

If a termination is suspected to be a retaliatory measure against an employee for exercising their rights under the Code—such as filing a complaint about workplace harassment, violence, or discrimination—they may be able to file a complaint for reprisal. This provides a vital safeguard against punitive actions by an employer.

The decision between pursuing a common law action and filing a statutory complaint involves complex legal considerations. We advise any federally regulated employee facing termination to seek timely legal counsel to understand their rights and determine the most effective course of action.

IV. Recognizing Constructive Dismissal

Constructive dismissal refers to cases where an employer makes working conditions so difficult that employees have no choice but to resign. However, employees must know that this is considered involuntary dismissal, and there may be legal consequences of this action. Also, this doctrine is applicable to everyone, including Ontario workers, Federally Regulated Canadian workers as well as workers in the state of Nevada.

The doctrine of constructive dismissal is a common law principle designed to provide relief to employees who have not been formally terminated but have been compelled to resign due to their employer's conduct. A constructive dismissal occurs when an employer makes a unilateral and fundamental change to a core term of the employment relationship.

This legal framework allows the court to treat the resulting resignation as a wrongful dismissal, thereby entitling the employee to claim damages. Absent this remedy, the employee would be deemed to have voluntarily resigned and would forfeit any claim to notice or compensation. Parties should be aware that legal standards and the quantum of damages for such claims differ substantially across different provincial and state jurisdictions.

Here are some situations that may fit the category of constructive dismissal:

● Severe pay cuts (typically higher than 10% in Ontario)

● Reduction or deductions in duties without authority

● Forced change in schedule or relocation

● Toxic work environments or harassment

● Dramatic expansions of job responsibilities without pay

● Mandated office return after a long telecommuting work setup

In the context of constructive dismissal litigation, timing is of the essence. When an employer fundamentally breaches the employment agreement, the employee is put to an election: either accept the changes or treat the breach as a termination of the contract.

Courts and tribunals recognize that this is a significant decision, and thus afford the employee a reasonable period to consider their position and obtain legal advice before taking action. However, a failure to formally object or resign within this timeframe can be interpreted as condonation or implied acceptance of the new terms of employment. What constitutes a "reasonable period" is a heavily adjudicated issue that depends on the specific facts of the case and the governing jurisdiction. For example, the analysis in a common law jurisdiction may differ substantially from that in an "at-will" jurisdiction like Nevada, where employment limitations may necessitate more expeditious action. Therefore, inaction or delay poses a significant risk to the viability of a constructive dismissal claim.

In these scenarios, documentation is pivotal to substantiating constructive dismissal. Employees must document specific incidents, workplace changes, management interaction, and impact on work performance to validate that circumstances essentially transformed initial employment arrangements.

V. To Sum Up ...

VI. Endnote

The path from minimal compensation to the full protection of your rights is paved with strategic action. Whether facing a termination in Canada or Nevada, the critical components for success are the same: proactive documentation, swift action, and sophisticated legal guidance.

You may want to consult with an experienced employment law firm, such as HTW Law, to learn about your employment law rights and your legal options.

With the right legal support, employees can navigate the challenges of unfair practices and work towards a more equitable and respectful work environment.

You don't have to fight the battle alone. Speaking with an employment lawyer who is familiar with the laws a

nd regulations regarding workplace harassment and disability discrimination, wrongful dismissal, federally regulated employee and constructive dismissal will go a long way. If you are in doubt, it's essential that you reach out for help as soon as possible right away.

Click here to contact HTW Law - Employment Lawyer for assistance and legal consultation.

contact htw law - employment lawyer for wrongful dismissal help

Author Bio:

Amy Wilson is a freelance writer and content strategist with a passion for crafting engaging stories and insightful articles. With years of experience across industries, she specializes in creating compelling content that connects with readers. When she's not writing, Amy enjoys exploring new ideas, traveling, and diving into a good book.