Your entitlement to compensation in a wrongful dismissal action
The act of an employer firing an employee without just cause is a wrongful dismissal. If you have been dismissed in Ontario without just cause, you are entitled to receive reasonable notice or pay in lieu of notice. The amount of notice pay your employer must give you depends on your case. The facts of your case determine how much notice is reasonable.
The Employment Standards Act in Ontario sets out the minimum entitlement of employees. Depending on your case, you may be entitled to receive severance pay, termination pay, and vacation pay in accordance with the Employment Standards Act minimums. Section 57 of the Employment Standards Act outlines the employment standards minimums an employee may be entitled to.
It is important to understand that you may be legally entitled to receive a lot more compensation at common law than the Employment Standards Act minimums. Receiving the appropriate compensation ensures that you are able to maintain your finances while searching for alternative employment. Your employer should reward your service and loyalty.
The facts of your case govern reasonable notice. There is no set “rule of thumb” or “formula”.
The factors considered in assessing compensation
Some of the factors to be considered as outlined in Bardal v Globe & Mail Ltd (1960) 24 DLR (2d) 140 (HCJ) include:
- the character of your employment;
- the length of service;
- your age; and
- the availability of similar employment while having regard to your experience, training and qualifications.
The analysis generally considers how long a period of time is reasonable for you to find alternative employment. It is also important to note that the factors outlined in Bardal are flexible. As a result, many other factors play a role in assessing the length of notice. Common law notice may be increased due to the employee being highly skilled. Notice may also increase as a result of the employee having a highly specialized and rare position. You must obtain legal advice. A wrongful dismissal lawyer will help you analyze your case correctly. The legal advice you receive is important.
Other factors considered in assessing notice in a wrongful dismissal action
Several other factors may increase what reasonable notice is in your wrongful dismissal case. Some may be related to the actions your employer:
- acting in bad faith or humiliating you during dismissal
- inducing you to leave another position and firing you shortly thereafter
- doing something that would damage your chances of securing another job
Whatever the reason behind your employer’s decision to dismiss you, it is very important to avoid hostility toward your employer. You must remember that even if you have a strong wrongful dismissal case, your employer is likely going to be on the other side of the table negotiating settlement at some point in time. You should not insult the person firing you even if you are angry and upset.
There are many situations where an efficient and amicable solution to a wrongful dismissal action is better than a protracted and bitter legal dispute. You must carefully identify your situation and pick your course of action.
If you suspect you have been wrongfully dismissed, take a look at this brief list of steps to take and actions to avoid. If you are the victim of a wrongful dismissal in Toronto, you may want to find out more about your duty to mitigate as an employee.
Wrongful dismissal and lack of just cause
If there is no just cause to dismiss you and you have not received reasonable notice or pay in lieu of notice, you may have been the victim of a wrongful dismissal. The employer may allege that some aspect of your conduct amounts to just cause for dismissal.
The employer sometimes attempts to rely on prior conduct to allege cause for dismissal. One such example is if an employee has been previously late. The employer has warned the employee for lateness in the past. The employer condoned the employee’s conduct. Suddenly, the employer attempts to use the previous warnings to justify dismissing the employee. As a result, you receive a termination letter. This may entitle you to commence a wrongful dismissal action against the employer. Therefore, you should immediately get a lawyer to examine your case.
Employer alleging there is just cause, but you believe there is no cause
If your employer alleges cause for dismissal, you should consult a wrongful dismissal lawyer. There are situations where your employer must see that you are willing to take legal action. A possible wrongful dismissal action may prompt your employer to consider your legal rights seriously.
The employer cannot advise you about your legal rights. Human Resources or c0-employees cannot advise you about your legal rights. You must ensure that you take the necessary steps to advance a wrongful dismissal action if there is no cause to dismiss you.
There may also be instances where the employer does not allege there is cause to dismiss the employee. Nonetheless, the employer attempts to limit the employee to the Employment Standards Act minimums. This may be done by giving the employee notice and severance pay in accordance with the Employment Standards Act and waiting to see if the employee will seek to enforce his or her legal rights.
Occasionally, the employer gives notice without alleging just cause. However, the notice given is the Employment Standards Act minimum. The employee may still be able to pursue a wrongful dismissal action to receive more compensation. Again, common law notice may be significantly higher than Employment Standards Act minimums for termination pay and severance pay.
Wrongful dismissal actions and termination letters
This is common in cases where the employer is not alleging just cause to dismiss the employee, i.e. a termination without cause. Any offers in a termination letter actually be only Employment Standards Act minimums. The termination letter will likely outline the reasons for your dismissal.
If your employer accuses you of misconduct, the termination letter will provide the specific details. Therefore, your termination letter is one of the first documents your lawyer must examine in your case. The termination letter outlines outlines the position of the employer. Additionally, the termination letter states whether or not just cause for dismissal is alleged by the employer.
There are many instances when the employee may actually be entitled to a lot more damages and compensation at common law if a wrongful dismissal action is pursued in in Superior Court. If as an employee you are the subject of a termination without cause, you should not agree to any settlement figures in a termination letter in relation to your dismissal without first consulting with an wrongful dismissal lawyer.
Employee resignations and wrongful dismissal actions
An employee resignation has to be voluntary. Your employer cannot mistreat you in order to cause you to quit. Your employer cannot force you to quit your position. If mistreatment by your employee has caused you to quit, you may have been wrongfully dismissed. The employer must be careful not to force employees to quit.
The employer cannot suggest in a subtle way through its actions that you are “better off” resigning from your position. Your employer cannot bully you into resigning from your job. Additionally, your employer cannot force you to relinquish your rights to compensation. Any such conduct may warrant a wrongful dismissal lawsuit.
Furthermore, an employee cannot maneuver or force an employee to resign. In other words, the employer cannot request that the employee quit. The employer cannot pressure the employee to quit his or her job or else face consequences. The employer cannot threaten you with a negative reference or comments on your employment record. Any such conduct by the employer may be grounds for recovery by the employee via wrongful dismissal litigation. Your employer cannot make your day to day work life difficult. Additionally, your superiors cannot mistreat you or make your work environment unbearable. A poisoned work environment sometimes entitles employees to sue the employer for constructive dismissal.
Other issues related to wrongful dismissal litigation
Employers and employees alike should consider the following issues related to wrongful dismissal:
- Termination of Employment
- Termination Letter
- Unlawful Dismissal
- Termination Without Cause
- Firing an Employee
- Employee Resignation
If you are suing for wrongful dismissal, you should speak with a wrongful dismissal lawyer. You must establish a strategy to fight your case. Wrongful dismissal law can be a complicated area of law to navigate without legal representation.
Furthermore, a wrongful dismissal can be a very stressful as the employee usually no longer has any income. The employee is likely to be more concerned about meeting financial obligations rather than commencing litigation. Having practiced for over 28 years, I understand the dynamics of wrongful dismissal litigation. Consequently, I am sensitive to the concerns you may have.
The information on this website is for informative purposes only. It is not legal advice. You can only retain a lawyer after a consultation. If you need a wrongful dismissal lawyer or have other employment law issues, call me at: 416 323 3614