Wrongful Dismissal

What is wrongful dismissal?

Wrongful dismissal is when an employer terminates an employee’s employment without just cause, more plainly known as firing without legal reason. Employers have a right to terminate employment for just cause. However, if you were terminated without just cause, you have a right to reasonable notice or pay in lieu (severance pay), if you do not receive notice.

If you do not receive notice, you may have a wrongful dismissal claim against your employer.

What is reasonable notice?

“Reasonable notice” of termination is an employee right. Notice is the amount of warning that your employer must give you before your employment is terminated.  It is calculated in three ways: 1) the Employment Standards Act 2) a contract of employment and 3) the Common Law (Judge made law).

The Employment Standards Act establishes minimum statutory requirements for compensation for individual terminations. Section 63 of the Employment Standards Act stipulates:

  • For service, between three months and one year, one week of wages (or notice) is required.
  • For one to three years, two weeks’ wages or notice are required.
  • For three years, three weeks’ wages or notice are required.
  • After three consecutive years of employment, one additional week of wages or notice is required, to a maximum of eight weeks.

The right to Employment Standards notice is not exclusive of contractual or Common-law notice.

If your employment contract specifies the length of notice that you are entitled to or is for a fixed period of time, you are entitled to that amount of notice, unless it is not compliant with the Employment Standards Act.

If the contract of employment does not specify the length of notice, an employee is entitled to common law notice. Courts can, and often will, provide for longer notice periods than Employment Standards. The current upper limit of “reasonable notice” determined by the courts is 24 months.

There is not exhaustive list to determine the criteria of notice period. The length of the notice period is determined on a case-by-case basis with consideration of the employee’s circumstances, including:

  1. the length of the employee’s service,
  2. the character of the employment (particularly whether management position);
  3. the availability of other similar employment;
  4. the employee’s age;
  5. employer’s conduct; and
  6. inducement from secure employment.

If your employment has been terminated by your employer, you should speak with a lawyer.