What is Wrongful Dismissal?
Wrongful Dismissal occurs when an employer terminates an employee and fails to give the employee adequate notice of their dismissal. In some cases, the employer fails to provide cause for the dismissal, and in others, the employer may provide a cause that is unjust. In both cases, one can argue the incidence of wrongful dismissal.
Employers should provide employees with as much time to find a new job as they would have given if the employer terminated them.
In the instance where an employee was wrongfully dismissed, they are entitled to be rewarded for their damages, also known as a severance package.
Factors that determine how long to give notice of dismissal are:
- The employees years of service
- The employee’s age and educational background
- The character, managerial status and nature of the employee’s position
- The circumstances of the employee’s hiring and termination
- In the case of very short-term employees, particularly at an executive or managerial level, the likely timeframe required to find comparable employment elsewhere
- The employee was induced to leave secure, prior employment.
- The availability of comparable alternate employment
- There are employment contracts that limit or otherwise address notice entitlements.
Likely so, termination with just cause is very rare and difficult for an employer to prove. The protocol for termination with just cause is for the employer to warn their employee on their low performance or misconduct and then provide them with the opportunity to improve their performance or misconduct. An employee should have a fair chance to fix their problem at the workplace. However, if the employee fails to improve themselves and continues to perform in a similar manner, even after receiving warnings, their employer may use this as a just cause to terminate them.
Ontario Employment Standards Act (ESA)
The legislation for Ontario workplaces is the ESA, managed by the Ministry of Labour. The Employment Standards Program receives, examines, and resolves workplace complaints and encourages compliance with the ESA.
The ESA delineates the rights of employees with regards to wages, vacations and leaves. It also sets the minimum standard on the guidelines a workplace must follow in order to operate legally in Ontario.
Employees can be compensated for wrongful dismissal in Ontario under both ESA and common law. The financial rewards provided through common law usually exceed the minimum damages rewarded under the provisions of the ESA.
We highly discourage anyone from seeking out legal advice through this article. Particularly, this article only provides general information, and if you have any further questions regarding Wrongful Dismissal, please contact us to book a free initial consultation.
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