Wrongful Dismissal and Severance Package Review

What is a Wrongful Dismissal?

In Ontario employment law, employers have the right to terminate an employee’s job. However, this right is not unfettered and it comes with certain requirements.

Generally, an employer can terminate (“fire”) an employee from their job:

Wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer

This is a very high standard for employers to meet. Here, the employer must show that the employee’s misconduct was intentional, pre-planned or deliberate, as opposed to careless, thoughtless, heedless or inadvertent conduct. The employer must show that the employee purposefully engaged in conduct that he or she knew to be serious misconduct. This involves an assessment of subjective intent, similar to proving specific intent in criminal law. In other words, the employer must show the employee “was being bad on purpose.” If proven, the employee is not entitled to even the minimum amount of notice of termination pay, severance pay, benefits continuance (or a financial severance package under common law). Some examples of wilful misconduct could include theft or assault.

For cause

This refers to other employee misconduct that is not intentional, pre-planned or deliberate, and can include poor performance that is not improved despite clear expectations and warnings. As such, it involves a more objective test while taking into account a contextual analysis. If proven, the employee is only entitled to the minimum amount of notice of termination pay, severance pay, benefits continuance, but not a financial severance package under common law.

Without cause

This refers to all other cases where an employer terminates an employee’s job for any reason (or no reason at all), other than discrimination. However, it comes at a cost – the employee must be proved with (at a minimum) the minimum amount of notice of termination pay, severance pay, benefits continuance, but not a financial severance package under common law. In fact, if the employee is not limited to only the minimum termination payments by an employment contract, they may be entitled to greater rights under common law to a severance package.

Severance Packages Reviews and Negotiation

In situations where an employee is entitled to their full compensation under common law, a court deciding a wrongful dismissal claim, or an employment lawyer negotiating a severance package, will consider the following factors to calculate how much severance pay the employee must be paid. Put simply, reasonable notice, in turn, represents the time that may reasonably be required to find replacement employment. These include:

employee’s age
length of service
employee’s ability to find a comparable job, considering their experiencing, training and qualifications
health/disability issues
pregnancy
economic conditions
the benefit that a successor employer receives from an employee’s prior experience (in cases of bankruptcy/insolvency)

Employment Lawyer in Toronto

If you are an employee who believes you have been wrongfully dismissed, please speak with our experienced employment lawyer in Toronto regarding your options, including negotiating your severance package to obtain the severance compensation you deserve, as well as wrongful dismissal claim.

Contact us by phone 647-822-5492 or fill out the contact form to the side. Our employment lawyer in Toronto would be happy to assist in your employment law matter as quickly as possible.

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