WRONGFUL DISMISSAL


We provide advice and representation to workers who have been wrongfully dismissed by their employers.

What is "wrongful dismissal"?

The law of the workplace in non-unionized organizations is that an employee may be terminated without “just cause”, as long as the employer provides the employee with adequate “notice” that they are losing their jobs. “Just cause” means that an employee is terminated for a legitimate reason (i.e. misconduct), which would justify immediate termination.

Absent “just cause”, an employer is required by law to provide an employee with adequate “notice” that their are being fired. “Notice” means that the employer must inform the employee that they are going to be terminated on a particular date. There are two important things to consider about “notice”. Working notice or pay-in-lieu of notice - after the employer gives the employee notice that they are being terminated on a particular date, they can either specify that the employee continue to work up to the date (working notice), or the employer can tell the employee not to show up for work again and pay them (typically a lump-sum) for the notice period (pay-in-lieu of notice).

Calculating the notice period - there are two separate methods for calculating how much notice an employee would be entitled to.
  1. Employment Standards: the Employment Standards Act (the legislation that sets minimum standards for wages, hours of work, etc.), establishes set notice periods depending on how long an employee has been employed for a given employer. The Ministry of Labour enforces the employment standards act.
  2. Reasonable notice: while the employment standards act establishes the minimum notice period that an employer needs to pay, an employee is typically entitled to a much more generous period of notice under the “common law”.

Wrongful dismissal is where an employer fires an employee for “just cause”, but where no cause actually exists. Determining what constitutes “just cause” can often be very contentious. Typically, it will depend on the severity of the conduct, record of prior misconduct and the type of position in question. While some types of conduct are accepted as justifying immediate dismissal on their first instance (theft or violence), there are many forms of misconduct that may not not justify dismissal on the first or subsequent instances (i.e. alleged incompetence or lateness). It is usually wise to consult with a lawyer to determine whether a termination was justified or not.

If your employer did not provide a reason for termination and did not give you working notice or pay-in-lieu of notice, it is likely that you would have a claim for wrongful dismissal.

Example 1: Fred has been employed by a paving company for about five (5) years. He is not represented by a union. One day, the paving company tells Fred to clean out his locker because his position is being eliminated. Fred’s employer is sorry to let him go, but says that he must leave at the end of the day. The paving company only pays Fred for the days that he worked and nothing more. Under these circumstances, it is likely that the paving company would owe Fred money since he was not provided with working notice or pay-in-lieu of notice.

Example 2: Samantha has been employed as a lifeguard for a privately owned swimming pool. She is not represented by a union and does not have a contract of employment. She had been late for work about five (5) times during a period of three (3) years. Samantha’s employer was usually accommodating of her prior lateness and never warned her of any adverse consequences of subsequent lateness. Samantha was about twenty (20) minutes late for work one day because her bus was delayed by traffic. Her manager called Samantha to her office after work and fired her, stating that her lateness was unacceptable. She was not paid beyond the day she was fired. Given her record of misconduct and her employer’s actions, Samantha would likely have a claim for wrongful dismissal.

Whether an employee has a claim, and how much the claim is worth, will depend on a number of factors. These factors include the amount of time that an employee has been working for the employer, their age, position and salary.

Please contact us for additional information and advice. As with other areas of law, there are limits on how long an employee can wait before beginning a claim.