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Employees Need to Know Their Rights - So Do Employers!

When Stephen Moxey suggested that Keith Deacon leave his job and come and work at Economy Distribution & Supply Inc, the 46-year-old Keith Deacon thought that was a pretty good idea.

Sadly, things did not go so well for Keith at Economy Distribution and within two weeks he was fired without any notice, or any payment of cash in lieu of notice. He was simply shown the door.

Fortunately for Keith, he was able to find new employment within seven weeks of having been fired.

Keith sued Stephen Moxey and his company Economy Distribution & Supply Inc., for wrongful dismissal.

Stephen Moxey and his company put up two defences:

The first defence was that Keith was fired for cause. The defendants claimed that not only did Keith Deacon miss his first day of work, but he was chronically late and did not follow his employer's instructions.

The second defence put up by Moxey and Economy Distribution was that an employer can fire its employees for any reason or for no reason at all, without any pay, if it does so within the first 3 months of employment.

The defendants claimed there is an automatic three-month probation period for each employee when they start a new job. The defendants argued that since Keith had worked less than three months he was on probation and as a result was not entitled to receive any notice...or any money!

So, what did the Judge find?

At the trial, the judge found that in fact Keith had started his employment on the first day of his work. The Judge also found that there was no evidence to prove Keith was late for work or that his work was inadequate. In other words, the court found that Keith had been fired without just cause.

The second argument raised by Moxey and Economy Distribution - that employees can be fired during those first three months, for any reason, without notice and without any a cash settlement - is widely believed to be true.

The trial judge reviewed the law including the Employment Standards Act and came to a different conclusion. The trial Judge found there is no such thing as an automatic probation period during the first three months of a person's employment. He also found that if an employee is to be fired without a valid reason, that employee is entitled to reasonable notice, or money in lieu of notice.

The trial judge said in this case that even though Keith Deacon had worked for a mere two weeks before being fired, if he hadn't been able to find a new job so quickly he would have been entitled to at least three months pay in lieu of notice which would have put $12,900 in his wallet.

Because Keith did find work within seven weeks of his wrongful dismissal, the court assessed his damages at $7,209.12. The court also added another $2,100 in court costs to be paid to Keith Deacon.

Lessons to be learned:

1. Employment law for both the employer and the employee is very tricky indeed.

2. If you are an employer, it makes good sense to obtain legal advice before dismissing an employee. Making the wrong decision can be very costly.

3. If you are an employee there is a great deal of law that protects your interests, and even if you are offered a 'payout package' you should consult a lawyer to make sure that you are receiving what you are entitled to, under the law.

4. There are 2 sides to every story. You need a knowledgeable lawyer to tell your side!

At The Ross Firm, we have lawyers whose practice focus is Employment Law and matters dealing with severance and/or termination disputes.

Give us a call.

Talk to us.

We can help.

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