Wrongful Dismissal
What Is Wrongful Dismissal?
A wrongful dismissal is a breach of the employment contract. It occurs where an employer terminates the employee's contract of employment and does not provide adequate notice of the termination.
Many employees do not realize that employers can fire employees on a “without cause” basis, unless doing so violates human rights legislation. This usually means that the employee has not done anything improper, but the employer decides to nevertheless end the employment relationship. Common reasons for "without cause" terminations include company reorganizations, financial difficulties, or even personality conflicts between employees.
How Much Notice is My Employer Required to Give?
If the employer decides to end the employment relationship, it must provide the employee with adequate notice. The Ontario Employment Standards Act (the "ESA") sets out minimum requirements that most employers in Ontario must adhere to when providing notice of termination to their employees. The ESA also provides for severance payments to be made to employees if they worked for the employer for at least five years and if the employer's payroll is at least $2.5 million).
While the ESA sets out the minimum notice requirements, you might be entitled to a more beneficial “reasonable notice period” at common law.
What constitutes common law "reasonable notice" will depend on the employee's individual circumstances. The goal of the reasonable notice period is to estimate how long it will take the employee to find comparable employment. In assessing the notice period, courts will consider an employee’s age, years of service, character of employment, and the availability of similar employment. People often speak of a rule of thumb, where employees receive one month of notice for each completed year of service. While this might be a helpful starting point in the reasonable notice period analysis, the reality is that the notice period may be longer or shorter, depending on an assessment of the relevant factors.
Do I Have to Work Throughout My Notice Period?
Working notice
Your employer might provide you with "working notice". This means that you must continue working throughout the notice period. Your employer must, however, give you reasonable time off to attend job interviews, if needed.
If you are provided with working notice, your employer must maintain all elements of your compensation, including salary, bonus, benefits, regular hours, etc. If your employer does not maintain all elements of your compensation, you may have a claim for constructive dismissal (click here to learn more). In many cases, your employer must also provide you with a lump sum severance payment at the end of the working notice period, as per the requirements of the ESA. This payment is equal to one week of salary per year of completed service, up to a maximum of 26 weeks.
Non-working notice
More commonly, your employer will provide you with "pay in lieu of notice" or a severance package, meaning that you do not have to report to work during the notice period. To learn more about severance packages, click here.
Combination of working and non-working notice
In some cases, employers may choose to provide you with a combination of working and non-working notice. This is permissible.
Why You Should Contact Us
Cavalluzzo lawyers are expert employment lawyers who have assisted thousands of employees who have been wrongfully dismissed. We are skilled negotiators who have collectively negotiated millions of dollars in settlement monies for our clients. We are also experienced litigators who have litigated some of Canada's most important employment law cases. Contact us for more information and to schedule an appointment.