Everything You Need to Know About Wrongful Dismissal

Employment law protects employees against being fired without just cause. Despite stringent employment laws such as the Employment Standard Act (ESA) in the province of Ontario, and the Canada Labour Code (CLC) for federally governed employers there are still many cases where employees are improperly dismissed. When an employee is improperly dismissed, a provincially regulated employer is required to provide payment to the employee. If the employer is governed federally, they can be forced to provide payment and reinstate the employee.

If you've recently been dismissed with or without just cause and believe that your employer has improperly dismissed you by breaching the employment contract, or not providing you with the proper notice requirements, you can file a claim. If you are provincially regulated, you can file a wrongful dismissal claim. If you are a federally regulated employee, you can file an unjust dismissal claim. Equally, if you’re an employer looking to dismiss an employee with or without just cause, it is wise to consult an employment lawyer as it could be a very costly proposition if not done properly.

Here at Suzanne Desrosiers Professional Corporation, we have a team of employment lawyers who can help employees and employers alike take on wrongful dismissal claims or unjust dismissal claims. We can also help guide the employer to proceed with terminations following the proper protocol. If you’re involved in a dismissal of any kind, you likely have more questions than answers. In that case, this article will help you understand the legal framework on dismissals better before you meet with one of our employment lawyers.

Understanding Wrongful Dismissal/Unjust Dismissal

Federally governed employers are forbidden from terminating their employees without just cause after 12 months of continuous employment. Proving just cause is difficult. Typically, just cause is proven by either one serious event such as theft that can be proven or by applying progressive discipline and establishing that, even after numerous attempts by the employer to correct the inappropriate behaviour, the employee’s inappropriate behaviour was simply not correctible. Should the employer choose to terminate the employee just cause, the termination may be found to be an unjust dismissal. This exposes the employer to damages that are meant to make the employee whole, as if the termination did not occur. A federally regulated employee can ask to be reinstated to their position if they were unjustly dismissed. This is not an available remedy to provincially regulated employees in Ontario.

In Ontario, provincially regulated employers can terminate employees with just cause if they can prove it. As mentioned, there is a high threshold to prove just cause. However, if an employer can establish just cause, the employer is not required to pay termination pay or severance pay to the dismissed employee. The employee will also likely be refused EI because it was through their own inappropriate behaviour that they lost their job.

If a provincially governed employer wishes to terminate an employee without alleging just cause, it can do so provided that they pay the appropriate termination pay or severance pay set out in the employment contract. If the contract is properly drafted, it can limit termination and severance pay to the minimums set out under the Employment Standard Act (ESA). Over the last few years, the enforceability of the termination clauses in employment contracts has continuously been challenged. Challenging a termination clause is typically done through a wrongful dismissal claim. When we talk about wrongful dismissal in Ontario, it means that the employee is alleging that they were not provided sufficient notice or pay in lieu of notice. The law is evolving quickly as the common law does not limit the amount of the termination pay and severance pay to a maximum of 8 weeks pay plus benefits. If the termination clause in the employment contract is null and void or if there is no valid employment contract, the employer can be expected to pay common law notice, which is substantially more than the termination pay under the ESA.

To give you an example, imagine a manager that has been employed for 20 years. She is terminated and the employment contract’s termination clause, giving only the minimum permitted under the ESA, is enforceable. In that case, the employer would be required to provide the manager 8 weeks notice with full salary plus benefits during the 8 weeks.

If the same manager is terminated and the contract’s termination clause is unenforceable or there is no employment contract, or the employment contract is null and void for other reasons the employer is exposed to up to 24 months of salary in severance pay. The employer would also have to pay benefits for a minimum of 8 weeks and up to the whole 24 months.

Constructive Dismissal

Constructive dismissal is when the employer purposely and significantly alters the employee's terms of employment without their consent, intending to encourage the employee to resign of their own volition.

Constructive dismissals are common. Some employees are unaware of their rights and don’t know they’re entitled to pay in lieu of notice due to their constructive dismissal. The best practice is to seek legal advice from an employment lawyer that is knowledgeable in the field and who can go over your rights as an employee before you quit your job.

How to Know If You’ve Been Wrongfully or Unjustly Dismissed

Reach out to an employment lawyer to see if you have been wrongfully or unjustly dismissed. Employment law is complex, and you need someone knowledgeable and experienced to help you with a wrongful dismissal claim or an unjust dismissal claim.

Here at Suzanne Desrosiers Professional Corporation, we have a team of employment lawyers who’ll answer your questions and let you know whether you should consider advancing a claim. Whether your employer knowingly or unknowingly wrongfully dismissed you, you’re entitled to fair and just treatment under either the provincial or federal laws governing your employment relationship.

For more information, contact our office at (705) 268-6492 or info@sdlawtimmins.com. One of our employment lawyers will schedule you for a consultation to discuss your employment law issues. If it’s determined that you were wrongfully dismissed, they’ll recommend a course of action.