A Guide to Wrongful Dismissal: 6 Tips

2017-03-31 13:22:15

If you lose your job and think you have been treated unfairly, you may in fact have been wrongfully dismissed by your employer. In that case, you may be entitled to sue your former employer for damages including increased separation or severance payments. Here’s what you need to know about wrongful dismissal.

Employee termination

Under Canadian law an employer has the right to terminate any employee as long as they provide notice and a separation or severance payment. This does not apply to contract or temporary employees. A wrongful termination could take place when the employer does not provide advance notice or fair payment in lieu of such notice. The term ‘fair’ is the one that is often in dispute in wrongful dismissal claims and there are many factors which contribute to the entitlement. They include the employee’s age, length of tenure and any employment contracts or arrangements that may have previously been in place.

Just cause

There may be reasons why an employer feels it necessary to let someone go. That might be an act of misconduct like fraud. In those cases, the employer would have what is termed just cause to terminate an employee. In that situation, they would not be required to provide the customary notice or pay severance pay. If an employee feels that the charge is false or does not justify their dismissal, they can still sue for wrongful dismissal in order to claim the benefits that they believe they are entitled to.

Is it a dismissal or just an employer getting rid of somebody?

Sometimes it is not completely clear that you have been terminated. Maybe an employer is hoping you will quit and then they don’t have to give notice or benefits. If the situation is unclear you should talk to a lawyer who specializes in wrongful dismissals. There might be extenuating circumstances like a human rights violation or some violation of employment standards legislation that could provide additional protection against an abrupt or wrongful dismissal from your job.

Reasonable notice

In every contract of employment there is an implicit term that an employer will provide an employee with reasonable notice of termination. There could also be a termination clause that mitigates that, but without one an employer has to abide by the standard terms of notice and payments in lieu of any notice being provide. There must be reasonable notice, unless there is notable misconduct or a clause in the employment contract that protects the employer. Therefore, the ‘wrongful’ in wrongful dismissal, refers to the fact that an employer did not provide reasonable notice and does not refer to the dismissal itself.

Bad faith

If an employer has not fulfilled their part of an employment contract or has acted unfairly, they may be acting in bad faith. In that case, the employer may be entitled to an increase in the amount of notice they would normally be entitled to. This might include actions like sexual or personal harassment or failing to provide a valid reason for dismissal. There is an expectation that both sides will act in a reasonable and fair manner towards each other. If the employer does not, they may be found guilty of acting in bad faith and financially penalized for those actions.

Suing for damages

If an employee has not received adequate notice and severance in accordance with the minimum requirements, they are entitled to sue their former employer for damages. This is a case where they absolutely should seek legal representation to bring their case forward. A wrongful dismissal lawyer will ensure the maximum protection and payout possible, while defending their client against any claims made by their previous employer. Their expertise will be invaluable as the case moves from negotiation to litigation, all the way to settlement.

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