There are many misconceptions about an employee’s rights and the employer’s obligations at the end of an employment. Two of the most common are that 1) an employer needs a reason to terminate an employee, and, 2) there is a standard calculation that applies to all Ontario workers when calculating how much termination/severance pay the employee is owed.
These misunderstandings lead directly to employees being wrongfully dismissed without even knowing it. If you were terminated for any reason, speak to a lawyer for wrongful termination right away to discuss the circumstances around the termination and the amount of termination pay (if any) you received.
As you will learn after reading this post, wrongful termination isn’t based on why you were terminated but how you were terminated, specifically, if you received the proper amount of notice you are entitled to under the law.
So What is Wrongful Dismissal?
Because an employer can end an employment at pretty much any time and for any reason, employment laws in Canada require that an employee be notified before they are let go to give them an opportunity to find a new job before they are out of work.
The amount of time you are entitled to depends on several factors, including what your employment contract stipulates regarding termination pay or notice, as well as your specific personal and employment characteristics as well. These are discussed in the next section.
Wrongful dismissal means that you were terminated without cause but were not given the amount of notice beforehand that you were entitled to or the pay you would have received during the proper notice period in lieu of that notice.
Your Right to Notice if You Are Terminated Without Cause
A non-union, non-federal employee whose employment is governed by the Employment Standards Act, is entitled to the minimum notice period allowed in the ESA, plus any applicable severance if employed for five years or more. (Federally-regulated employees are bound by the rules and allowances in the Canada Labour Code.)
However, since the law states that the notice period must be “reasonable,” many employees are entitled to a longer notice period than the ESA minimums.
Under the common law(judicial rulings in previous court cases), judges look at more than the length of your employment to determine what a “reasonable notice period” should be in a specific case. Courts generally reach their decisions on how long it would reasonably take you to find a new job by considering factors that include:
- Age of the employee.
- Length of the employee’s service.
- Level of the position held.
- Availability of similar employment.
That’s why it’s absolutely crucial that you speak to an employment lawyer before you sign off on a severance package, as you are likely being offered considerably less than what you are entitled to. Contrary to what your employer may tell you, you do not have to accept their severance package by a deadline they give you.
Other Situations of Wrongful Termination
Wrongful dismissal can also occur if:
- An employer unilaterally makes fundamental changes to the employment, and the employee feels they have no choice but to quit. This may be considered a constructive dismissal which entitles the employee to the notice or termination pay they were not eligible for when they quit.
- An employer terminates an employee “for cause” or with “just cause,” but a court or tribunal later finds that the employer did not have grounds to do so. Terminations with cause are meant for severe incidents of misconduct such as theft, fraud or insubordination and have a high standard of proof.
In these situations, always speak to an employment lawyer before making the decision to quit or to accept that your performance or actions warranted a “for cause” termination. Every situation is unique, and there is a lot more to know about how the law applies to each.