Wrongful Dismissal in Canada
- November 17, 2023
- Posted by: admin
- Category: Employment Law
***Please note the following is not meant to be legal advice, it is simply a discussion about the topic. If you or someone you know has been wrongfully dismissed, please contact the lawyers at Nadi Law in order to schedule a consultation****
Wrongful dismissal, also known as wrongful termination, is a legal term used to describe a situation where an employee is terminated from their job without just cause. In Canada, wrongful dismissal occurs when an employer terminates an employee without providing the required notice or pay in lieu of notice. This can happen in a number of ways, including termination without notice, termination with inadequate notice, or a termination alleging just cause when there are insufficient grounds for a just cause termination.
In Ontario, the Employment Standards Act (ESA) sets out the minimum standards for termination and severance pay. Under the ESA, an employee who has been employed for at least three months is entitled to one week of notice or pay in lieu of notice for each completed year of service, up to a maximum of eight weeks. However, an employee may also be entitled to common law notice, which typically provides for a much greater entitlement than the minimums set out in the ESA. Common law notice period is determined by considering the employee’s length of service, age, and position, and availability of similar employment as established in the case of Bardal v. Globe & Mail Ltd.,  O.R. 731.
To understand wrongful dismissal in Canada, it is important to first understand the concept of “just cause”. Just cause is a legal term used to describe the circumstances under which an employer can terminate an employee without providing notice or pay in lieu of notice. Just cause is a high standard and can include things like gross misconduct, insubordination, absenteeism or theft. In most cases, an employer must provide clear and convincing evidence that the employee engaged in the alleged misconduct in order to terminate an employee without just cause.
When an employee is terminated without just cause, the employee is entitled to notice or pay in lieu of notice. The amount of notice or pay in lieu of notice that an employee is entitled to depends on a number of factors, as outlined in the above paragraph. These factors are taken into account to determine the appropriate length of notice, which can range from as low as a few weeks to as high as two years depending on the individual case. If you require the expertise of a termination lawyer, feel free to reach out for further assistance.
In addition to notice or pay in lieu of notice, an employee who has been wrongfully dismissed may also be entitled to additional damages, such as lost wages, out-of-pocket expenses, and loss of benefits. These damages can be substantial and can often be in the range of several months’ salary. This is particularly true for employees who have been with the company for a long time, or who have specialized skills or experience that are difficult to replace.
Another important aspect of wrongful dismissal is the role of “bad faith” in termination. Bad faith is a legal term used to describe situations where an employer terminates an employee without providing notice or pay in lieu of notice in order to avoid paying the employee what they are entitled to. This can include situations where an employer lies about the reasons for termination, or where an employer terminates an employee in order to avoid paying severance or other benefits. In cases of bad faith termination, an employee may be entitled to additional damages on top of their common law entitlements.
It is also important to note that in Canada, there are strict time limits for bringing a wrongful dismissal claim. In Ontario, an employee has only two years from the date of termination to file a lawsuit in court. It is important that employees who believe they have been wrongfully dismissed seek legal advice as soon as possible, in order to ensure that their rights are protected.
In addition to the legal remedies available for wrongful dismissal, there are also a number of steps that employees can take to protect themselves from wrongful dismissal. This can include understanding their rights under the ESA, reviewing their employment contract, and keeping accurate records of any incidents or interactions that may be relevant to a wrongful dismissal claim.
In conclusion, wrongful dismissal is a serious issue in Canada and can have significant financial consequences for both employees and employers. It is important for employees to understand their rights and for employers to understand their obligations when it comes to terminating employees. The Employment Standards Act in Ontario provides a minimum standard for termination and severance pay, however, an employee may be entitled to more through a common law claim. If you believe that you have been wrongfully dismissed, you should seek legal advice as soon as possible to protect your rights and ensure that you receive the compensation you are entitled to. Please feel free speak to one of the experienced employment lawyers at Nadi Law if you have any questions.
–The Team at Nadi Law