Posting requirements and Enforcement
I was recently terminated by my employer. Can I simply file a complaint with the Employment Standards Branch of the Ministry of Labour for wrongful dismissal, or do I need a lawyer?
You must be careful about how you proceed.
Your recovery under the Employment Standards Act is limited. You will likely be entitled to between one and eight weeks notice of termination, based on the length of your service and, perhaps, severance pay varying between 5 and 26 weeks, normally if your employer has a payroll in excess of $2.5 million per annum and you have five or more years of service. That said, you may have a claim that exceeds your Employment Standards Act entitlement, and in most cases employees do, that can only be pursued through the courts.
If you file a complaint under the Employment Standards Act, and do not withdraw it within two weeks of filing, you are precluded from suing your employer for wrongful dismissal, for the same termination of employment. The Employment Standards Act prevents you from both filing a complaint for notice of termination and severance pay under the Act and, in respect of the same termination, suing your employer for wrongful dismissal. In effect, you must elect between the two.
Accordingly, proceed with caution before filing an employment standards complaint. You will want to appreciate what your maximum recovery will be in those circumstances and how that compares to your probable recovery should you elect to sue for wrongful dismissal.
In essence, look before you leap.