So you’ve been fired, canned, downsized, right-sized or let go.
You pick the euphemism, but in any case your job is history. You see a lawyer and the first question you ask is « Can they really fire me — can I get my job back? »
I’m going to answer the question for you, but bear with me as it gets complicated. I place fired employees into five categories in Ontario.
The first category is made up of union employees. If you are a member of a union your union can file a grievance for you and depending on the reasons for the dismissal an arbitrator can order you reinstated to your job with back pay.
The second category is made up of employees of federally regulated businesses such as banks, broadcasting companies (TV or radio), cable providers, telephone companies or federal insurance companies. If you’ve been employed by a federally regulated employer for 12 months or more then you can make an unjust dismissal claim and depending on the reasons for your dismissal you may get your job back.
The third category is made up of those employees who are fired due to a prohibited ground. I’m speaking of those employees fired by reason of their race, colour, religion, sex, sexual orientation, disability and other prohibited human rights grounds.
If you’ve been fired or think you’ve been fired for a prohibited reason, you can file a human rights complaint and you just might get your job back with full back pay.
The fourth category is made up of federal and provincial government employees. Depending on your position and the reasons for the dismissal you may also have the right to apply for reinstatement.
The fifth and last category is everybody else. If, like most people, you fall into this category then your boss can fire you for any capricious reason — even if it’s just that he doesn’t like the colour of your eyes — or for no reason at all. You have no legal right to apply for reinstatement.
Let’s say you’re having a beer with four of your buddies who’ve all lost their jobs: one is an assembly worker at GM, one is a sales advertisement manager at a local radio station, one is recovering from a heart attack, one works for the Ontario government and you, well you work for a car dealer. It may sound crazy but each of you has different rights. The law treats each of you differently when it comes to trying to get your job back. If I had to choose I’d rather be the radio station employee or the fellow fired due to a disability. It’s people in category number five — the majority of people — who have no rights when it comes to trying to get their jobs back.
And if you don’t really want to get your job back but you have the right to try to get your job back then you might just be able to use that as a bargaining chip to get a fatter severance package. I’ve seen it done many times.
But don’t despair, you of the fifth category, you may be entitled to some pay in lieu of notice or severance pay. That’s an even more complicated story. More on that in my next column.
Alan Shanoff recently retired from his post as the Sun’s lawyer. Reach Alan at email@example.com