Can I file a wrongful dismissal claim after cashing a severance cheque?

The short answer is yes. Non-unionized employees in Canada can file a wrongful dismissal claim after cashing a severance cheque.

The act of cashing a cheque doesn’t mean that an individual has accepted their employer’s severance offer. The situation changes if you did sign an offer as well as a “Release document.”

However, it’s not uncommon for these documents to be unenforceable — failing to hold up in a court of law for various reasons.

If you believe that you have been wrongfully dismissed, and you did sign a Release document, contact an experienced employment lawyer at Samfiru Tumarkin LLP.

We can determine if the document is enforceable and help you secure the compensation you are legally entitled to if it isn’t.

LEARN MORE
• Should I negotiate my own severance package in Ontario?
• Should Albertans negotiate their own severance package?
• Negotiating severance in B.C.: What employees need to know

What is a wrongful dismissal?

In Canada, a wrongful dismissal occurs when non-unionized workers are fired without cause or permanently laid off by their employer, but aren’t given the proper amount of working notice or severance pay.

WATCH: Employment lawyer Lior Samfiru breaks down everything you need to know about wrongful dismissals on an episode of the Employment Law Show.

Severance can be as much as 24 months’ pay. The amount of compensation you are entitled to is calculated using a variety of factors, including:

• Age
• Length of service
• Position at the company
• Ability to find new work

To figure out how much you could be owed, use our firm’s free Severance Pay Calculator. It has helped millions of Canadians determine their severance entitlements.

If your company doesn’t provide you with the correct amount, you have been wrongfully dismissed and should seek legal counsel immediately.

Our employment lawyers regularly resolve wrongful dismissal claims and can help you secure proper severance.

LEARN MORE
• Severance pay for provincially regulated employees
• Rights to severance for federally regulated employees
• Employment Law Show: Facts about the termination process

Does cashing a cheque affect my severance entitlements?

If you cashed a severance cheque, and your wrongful dismissal claim is successful, the amount of compensation that you already received before the final agreement was negotiated counts towards your overall entitlements.

• Example: Your employer provides you with a cheque totalling five months of severance pay. After successfully arguing that you were wrongfully dismissed, a court rules that you are entitled to 15 months of severance pay. Since the company already gave you a cheque for five months of severance pay, they would only have to provide you with the remaining 10 months.

I didn’t cash my cheque, does this mean that I don’t want any severance?

If you don’t cash a severance cheque after you have been fired or let go, it doesn’t mean that you have declined to accept any form of compensation.

Non-unionized employees in Canada are encouraged to cash their severance cheques so that they don’t have to ask their employer for a new one once the initial cheque becomes stale-dated.

My employer is pressuring me to sign my severance offer immediately, what should I do?

In many cases, employers in Canada pressure non-unionized workers to immediately accept severance offers that provide them with far less compensation than they are entitled to.

It’s important to understand that your boss can’t legally force you to sign an offer before leaving a termination meeting or a few days after receiving it.

If your company provides you with a severance offer, don’t accept anything before speaking with an experienced employment lawyer at Samfiru Tumarkin LLP.

In some cases, employers try to add:

• A termination clause that limits the amount of severance pay you can receive
• Non-compete clauses that prevent you from being able to pursue employment elsewhere in your industry

As long as you didn’t accept the offer and return it to your boss, you have two years from the date of your dismissal to pursue full severance pay.

SEE ALSO
• ’60 days or more’: Is it an enforceable termination clause?
• Employment contracts in Ontario
• What to know about employment contracts in Alberta
• Employment contracts in B.C.: Your rights

My employer won’t provide me with any severance after I declined their offer, can they do that?

The short answer is no. Employers in Canada are legally obligated to provide non-unionized workers with the minimum amount of severance pay required under provincial and federal legislation.

• Example: You have worked at a large company in Toronto for more than 26 years. One day, your manager informs you that you are being fired without cause, effective immediately. While you could be owed as much as 24 months of severance pay, you are entitled to at least 34 weeks of compensation without signing or accepting your employer’s severance offer.

If you don’t receive any severance from your boss after refusing their initial offer, it’s very likely that you could file a wrongful dismissal claim to obtain proper severance.

SEE ALSO
• Employment Law Show: You’re still owed severance if…
• Employment Law Show: What your employer legally can’t do
• Employment Law Show: Situations that trigger legal disputes

Received a severance offer? Speak with an employment lawyer

Before accepting any severance offer from your employer, contact the experienced employment law team at Samfiru Tumarkin LLP.

Our lawyers in Ontario, Alberta, and B.C. have helped tens of thousands of non-unionized employees resolve their workplace issues.

We can review the offer and make sure that you receive the compensation you are legally entitled to.