A letter of reference is a key term in a wrongful dismissal matter. It would be prudent in most situations to include the actual letter as a term of the settlement. Attach it as an appendix, along with a provision that the oral references are consistent with the content of the reference letter. In some situations, it is stipulated that the oral references are confined to what is stipulated in the reference letter. This way you have made the reference letter and the oral references an actual term of the settlement.
When an employer terminates an employee’s employment and does not provide them with a severance package in accordance with the common law, the employee has been wrongfully dismissed.
If you have received a severance offer or have only been paid your statutory entitlements under the Ontario Employment Standards Act, 2000 or the Canada Labour Code, you should consult with an Employment Lawyer immediately.
The common law which is the law based upon court decisions provides you with significantly more than your statutory entitlements. Most employees are not aware that they also have entitlements under the common law if their employment has been terminated. The common law views the employment relationship as a contractual relationship. Therefore, when the employer terminates the employee’s employment and does not give reasonable notice or severance in lieu thereof, this constitutes a breach of contract. As such, the employer has to pay the employee damages (ie. lost wages) for breach of contract.
The employee’s entitlement to damages (severance) is based upon the court’s determination of how long it will take the employee given his circumstances to find a comparable position (What is the reasonable notice period?). The key factors to determine the reasonable notice period include:
- the type of job the employee held;
- the employee’s age and
- the employee’s length of service with the employer.
If you have been wrongfully dismissed, consult with an experienced Employment Lawyer.