This blog is one in a series written by our team of employment lawyers, to provide our readers with added knowledge in the area of labour employment law. As Employees, there is so much that you may feel powerless about and it is important to know what your employment rights are and how to protect yourself for the times when you and your employer don’t see eye to eye.
What is wrongful dismissal, and what can you do about it?
Wrongful dismissal comes under many different names: terminated, dismissed, severed, fired, laid-off, furloughed, restructured, and position eliminated, to name a few. But it all comes down to the same thing: wrongful dismissal occurs where your employer decides to end your employment. As an employee you have employment rights and human rights. Talking to an employment lawyer or an employment law firm is a good first step to understanding your rights.
What makes a dismissal “wrongful”?
The reason for a dismissal is not what makes it wrongful; the wrongfulness of a dismissal lies in your employer’s failure to give you reasonable notice of that dismissal ahead of time. In other words, a wrongful dismissal is one given without reasonable notice.
Do my employer’s reasons matter?
Most of the time, your employer’s reasons for dismissing you do not matter – and this is a good thing for you. Courts have tried to design the law of wrongful dismissal to make these cases as smooth and as simple as possible. Usually, it works. Compared with other types of lawsuits, wrongful dismissal cases tend to settle fairly quickly.
There are a few narrow cases where your employer’s reasons for dismissal could matter. In the most extreme cases of employee misconduct or disobedience, employers may dismiss an employee “for cause” (i.e., without notice). In other cases, employees may have special rights if dismissed for one of a handful of reasons specifically prohibited by law (for instance, employers may not retaliate against an employee for raising health and safety complaints).
How much notice is “Reasonable Notice”?
Again, a wrongful dismissal is one that occurs without “reasonable notice”. The theory of reasonable notice is to provide dismissed employees enough time to secure a comparable job, without a loss of pay. Courts determine how much notice is reasonable based on a long list of factors, including your length of service, age, character of employment, and chances of re-employment. Most awards for reasonable notice fall somewhere in the range of two month to two years.
Importantly, reasonable notice is not merit-based, meaning that job performance does not enter the equation.
What if I have not received notice?
Most employees will not receive actual notice of termination, and instead will receive (or will sue for) pay in lieu of notice. A court will award a wrongfully dismissed employee damages (i.e., money) in lieu of reasonable notice. Courts do not order employees to be reinstated to a job. If you are not sure what you are entitled to you need to get legal advice from an employment lawyer.
Are all employees entitled to reasonable notice of termination?
All employees in Canada are presumptively entitled to reasonable notice, but you can sign away your right to reasonable notice if your employment contract contains a termination provision. Courts, however, openly try to avoid enforcing termination provisions. Labour / Employment Law in Canada says that termination provisions are not enforceable unless they are worded very clearly and comply with several strict technical requirements that are set out in the case law.
Can I find my reasonable notice in the Employment Standards Act or from the Ministry of Labour?
No. Reasonable notice is judge-made law, and you will not find information about it in the Employment Standards Act or from the Ministry of Labour website. The Employment Standards Act contains minimum notice and severance requirements which operate independently from the law of reasonable notice. Your notice and severance entitlements under the Employment Standards Act are typically only about one-quarter to one-half of your entitlement to reasonable notice.
Should I accept my employer’s severance offer?
You should not accept your employer’s severance offer without first consulting with an employment lawyer. In many cases, your employer’s first offer is not their best offer. An employment lawyer can explain your legal entitlements to you, and walk you through the risks, benefits, and strategies to negotiate a severance package.
If you have been subject of a wrongful dismissal, termination, lay-off, or severed from your job, contact the employment lawyers at Share Lawyers. Our experienced Employment Law Firm can help you fight for your rights . We offer free consultations and there are no fees unless you win your case. Find out if you have an Employment Case!