Chris Wilson 2016-02-29 15:00:00
In Canada, wrongful dismissal is a legal term used to refer to scenarios where an employee was fired, laid off, or restructured out of their position unreasonably, unfairly, or without just cause. Several hundreds of Canadians are wrongfully dismissed every month. If you've been at your job for more than the three-month probation period and are dismissed without the proper compensation or notice, then you may have a case of wrongful dismissal.
Here is how to determine if you've been wrongfully dismissed, and what to do about it:
Are you considered an employee? If you were hired on a sales commission basis without a base salary, it is not legally an employee-employer relationship, and the work contract can be canceled at any time.
Determine if you were dismissed with or without cause. Without cause means your boss didn't have any disciplinary justification to terminate your employment; this could be due to your position being eliminated or budget cuts. Either way, your employer has to provide you with reasonable notice or pay in lieu of notice.
If you were dismissed with cause, that means you committed some act that breached your contract (like incompetence, theft, or disobedience). If there is proof, usually in the form of documentation of the behaviour that led to your firing, it will likely be hard to prove wrongful dismissal. If, on the other hand, your employer improperly claimed you were fired with cause might have to pay extra wrongful dismissal charges.
Decide if you were constructively dismissed, if applicable. If your duties, level of authority, responsibilities, or pay were substantially changed to the point that you were essentially dismissed, this is called constructive dismissal. You have the option to quit and sue for wrongful dismissal, but always get legal advice before doing so.
Do any of the exceptions to wrongful dismissal apply to your case? There are some circumstances where employees cannot sue for wrongful dismissal: if the employee was part of a union (they must file grievances with the union instead) or if the employee has a written employment contract that is enforceable.
Did you get appropriate notice/pay or severance according to provincial law? There is legislation in place that dictates the minimum compensation after dismissal. Under Ontario's provincial legislation, the Employment Standards Act says employees who are dismissed must get a certain amount of notice (or pay instead of) based on how long they were employed there.
• Less than three months employment: nothing required
• Three months to one year: one week
• One year to three years: two weeks
• Three years to four years: three weeks
• One additional week for each year worked after four years, up to a maximum of eight weeks.
Some employees are also entitled to severance pay: those who have worked for the same employer for more than five years AND where the employer has over $2.5 million in payroll in Ontario. In this case the employee is also entitled to one week's pay for each year worked, up to a maximum of 26.
Did you get appropriate compensation according to common law? As years have gone by, decisions made by judges across Canada in regards to compensation are also applied on current cases. Courts have determined that employees are entitled to compensation for certain things during the notice period. These things include benefits, club memberships, non-discretionary bonuses, and salary.
Get legal advice about your situation. If you feel you have been wrongfully dismissed, or you aren't sure, consult an experienced employment lawyer such as Daniel Lublin and David Whitten at Whitten & Lublin LLP. Take with you any documents that pertain to your employment and dismissal.