Wrongful Dismissal

Contrary to popular belief, wrongful dismissal usually has little to do with your employer’s reasons for terminating your employment. Rather, the wrongfulness of a wrongful dismissal refers to the lack of a reasonable notice period and/or severance pay. This right to notice of termination is one of the most valuable legal protections you have as an employee. In most cases, employers will try to get away with paying as little as possible to terminated employees despite what's written in employment contracts. This strategy often works - many employees are unaware of their legal entitlements and allow their employers to get away with the bare minimum.

Don’t let this happen to you. If your employment has been terminated, book a free consultation today with one of our Toronto employment lawyers to help you determine your employee rights.

Contrary to popular understanding, wrongful dismissal usually has nothing to do with the reasons for your dismissal. The thing that makes a dismissal wrongful is the lack of reasonable notice. The remedy that a court can award you for wrongful dismissal is pay instead of reasonable notice.

What is “constructive dismissal”? Is it different from wrongful dismissal?

Constructive dismissal occurs when your employer changes important terms of your employment, or otherwise treats you very poorly, to the point that your employment may legally be considered terminated. Constructive dismissal can occur even if your employer has taken no steps to dismiss you – in other words, the dismissal is “constructed” at law from the surrounding circumstances. An employee who is constructively dismissed can quit and sue for wrongful dismissal. The damages for constructive dismissal are exactly the same as those for wrongful dismissal.

Wrongfully dismissed from your job

A wrongful dismissal is a termination without cause that occurs with inadequate notice. Termination “without cause” is the standard basis upon which an employer will dismiss an employee. You may have certain entitlements arising out of that wrongful termination, which we can speak with you about, and help you recover from your employer.

Wrongful dismissal entitlements are measured in terms of notice (or, much more often, pay in lieu of notice). The Court will look at your circumstances and determine how much advance notice of termination you ought to have received. If you did not receive adequate notice, the court will award you the payment that you would have earned if you had received proper notice.

Our employment lawyers will give you an estimate of the amount of notice you may be entitled to, which will fall in the range of 0 and 24 months. The amount of notice or pay you are entitled to is not an exact science, and will typically fall within a significant range of outcomes depending on your circumstances – most significantly, your age, length of service, character of employment and chances of re-employment to a similar role. Your employer may (or may not) make you an offer for pay in lieu of notice upon terminating your employment. Your employer’s first offer may be on the low side of that range.

Your employment contract

Our wrongful dismissal lawyers need to see your employment contract or employment agreement that you signed at the beginning of your employment. It may contain terms limiting or removing altogether your “common law” severance entitlement. The advice an employment lawyer provides to you can change drastically depending on what we see in your employment contract.

Your efforts to seek re-employment (or lack thereof)

If the issue of your wrongful termination proceeds to litigation, you may have a legal duty to make “reasonable efforts” to look for comparable replacement employment. You need to be able to prove (with documentation) that you have done so. If you cannot prove that “reasonable efforts”, your entitlements will be negatively affected (for more details, see the information sheet on “mitigation”, if applicable).

Your success in seeking re-employment (or lack thereof)

If you secure another job, your replacement income will reduce your common law severance entitlement accordingly (for more details, see the information sheet on “mitigation”, if applicable).

Your employer’s reasons for dismissing you

With some narrow exceptions, your employer’s reasons will not impact the amount you are entitled to. Our employment lawyers will ask you questions about your wrongful dismissal claim to advise you whether your employer’s reasons are likely to be relevant (for more information, see the information sheet on “general damages”, if applicable).

Workplace conflicts, grievances, disagreements, or other unresolved issues from your employment

In the interests of simplicity, courts prefer to leave all of these issues behind at the point of termination. There are some narrow exceptions to this rule, where your employer has acted maliciously towards you or breached your basic human or employment rights.

Your job performance

Your entitlements are not merit-based. Your job performance has no bearing upon your entitlements.

In extreme circumstances, your employer may have “just cause” to terminate your employment without notice. However, courts typically reserve cause for the worst and most egregious offences, such as dishonesty, theft, violence, harassment, etc. Employers often attempt to terminate employees for cause with inadequate justification.

Poor performance

As long as you are putting in a genuine, good-faith effort to perform your job duties, your employer will find it very difficult to use this as a basis to terminate you for cause.

Mistakes

An error – even one with significant consequences - is typically not grounds to terminate for cause. Unless your mistake was the result of knowingly failing to follow established policies and procedures, it is very unlikely that this would represent just cause for your dismissal without notice.

Failing to follow proper procedures

Unless you have received multiple clear warnings, failing to follow your employer’s policies and procedures typically does not give rise to termination for just cause.