What is a Wrongful Dismissal in Ontario? - Employment Lawyer Toronto

What is a Wrongful Dismissal?

In Canada, a wrongful dismissal refers to an employer unlawfully terminating an employee’s employment without complying with its legal obligation under an employment contract.

Contrary to a common misconception, what makes a dismissal “wrongful” is not the end of employment itself, but rather the employer not first providing the wrongfully terminated employer with notice of termination, or pay in lieu of notice (also called a financial severance package).

Generally speaking, a termination of employment refers to the end of an employee’s contract with an employer. This can take place for a variety of reasons, including an employer’s decision to permanently lay off (or fire) the employee either:

⁃ for just cause: In some cases, employers take the position that an employee committed serious misconduct (or wrongdoing) that allows them to avoid having to provide the employee with prior notice of their last day of work (sometimes called “working notice”), or a financial severance package. In those cases, employer argue they have “just cause for dismissal” and attempt to avoid having to provide severance pay. However, this is generally hard for an employer to prove, so many employees end up negotiating a fair severance package with the help of an employment lawyer, or otherwise pursuing a wrongful dismissal claim.

⁃ without cause: In a termination without cause, employers terminate an employee’s job usually due to downsizing (or any other reason, as long as it is not based on discrimination or an unlawful reprisal). In fact, this is the most common way an employee’s job is terminated in Ontario, since it provides employers with more flexibility. In return, an employer provides the employee with either prior notice of termination of a financial severance package.

A termination of employment is the opposite of an employee’s voluntary decision to resign, or a mutual agreement of both an employer and employer to end the employment relationship (mutual cessation).

In general, employers in Ontario are required to give employees notice of termination or pay in lieu of notice, unless the employee is being terminated for just cause. The amount of notice of termination (financial value of the severance package) will depend on a careful consideration of various factors, including:

Does the employer have justification to fire the employee for “wilful misconduct”, such that the employee is should not receive even the minimum entitlements to notice of termination (termination pay), benefits continuance or severance pay under the Ontario Employment Standards Act, 2000?
Does the employer have justification to fire the employee for “just cause” under common law, such that the employee is should only receive the minimum entitlements to notice of termination (termination pay), benefits continuance or severance pay under the Ontario Employment Standards Act, 2000?
Did the employer voluntarily resigned from their employment, or otherwise abandoned their job, thereby forfeiting any financial severance package they would otherwise be entitled to receive?
Is there a frustration of the employment contract?
Has the employee signed a valid and legally enforceable employment contract with a termination clause that limits their termination-related entitlements to only the minimum standards under the Ontario Employment Standards Act, 2000?

If none of the above circumstances apply, the employee is entitled to receive common law pay in lieu of notice of termination, calculated based on the length of the employee’s service with the company, as well as other factors such as the employee’s age, position, character of employment, years of service, and many other factors that (objectively speaking) the courts in Ontario recognize will impact an employee’s ability to quickly find a similar job.

If you are an employee who believes you have been wrongly terminated, it is very important to speak with a top Ontario employment lawyer to find out your options and what you should do. Specifically, you should discuss the reasons why you should challenge your termination of employment through successful negotiations with the help of an employment lawyer or, if necessary, bringing a wrongful dismissal court challenge to obtain an appropriate severance package..

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If you are an employer who is facing a wrongful dismissal claim and need employer defence counsel for help or representation, or an employee who believes you have been wrongfully dismissed by your employer and you would like to know if you have the right to sue your employer for constructive dismissal, review your employment contract or negotiate a severance package, our experienced constructive dismissal lawyer at Bune Law, Toronto employment lawyer, can help. Contact us by phone 647-822-5492 or fill out the contact form to the side. We would be happy to assist in your employment law matter as quickly as possible.

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