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wrongful dismissal
Fair Treatment at the Workplace
Wrongful dismissal or wrongful termination refers to the unfair and unreasonable termination of an employee. In determining whether one is entitled to damages for wrongful dismissal, one must first be found to be an employee. Generally, to be an employee, one must be under the control and direction of an employer. Therefore, where one's payment is determined solely by commission, rather than a wage, without direct control or supervision, one may be precluded from seeking damages for lack of notice for wrongful dismissal.
If an employee has been justifiably terminated, or in other words "with just cause", he or she will not be entitled to damages for wrongful dismissal and will not be entitled to damages for lack of notice for the dismissal. Some examples of "just cause" terminations are where an employee has:
- Engaged in sexual harassment at the workplace;
- Been dishonest towards their employers (i.e. theft);
- Willfully disobeyed policy, procedures, or clear instructions without good reason; been insolent and insubordinate.
Contrary to popular belief, employers have the option of either providing an employee with proper notice, or severance pay in lieu of notice. Ontario's Employment Standards Act, for example, requires written notice of one week for employees employed for more than three months, but less than one year, two weeks written notice for employees employed for more than one year, but less than three years, three weeks written notice for employees more than three years, but less than four years, to a maximum of eight weeks written notice if the employee has been employed for eight years or more. Federal government employees may be entitled to additional benefits under the Canada Labour Code. Since the Employment Standards Act sets out minimal notice requirements, employees are often entitled to more substantial severance pay at common law.
In arriving at a just award, a Court takes into consideration factors such as Length of Service, Position and Responsibility, Age, and many other factors.
An employee need not be directly dismissed by an employer for the employee to make a claim for wrongful dismissal. The employee may claim Constructive Dismissal, taking into consideration mistreatment, demotion, change of position, reduction in pay, etc.
It behooves both the employer and the employee to attempt to sever the employer/employee relationship as fairly as possible and as quickly as possible. We can help and guide the employer or the employee through this period of time, which can be both emotionally and monetarily expensive.
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