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.
A wrongful dismissal doesn’t necessarily indicate that an unlawful act has been committed, rather it focuses on the fairness in the timing of the notice that was given to the employee on their dismissal.
In the instance where an employee was wrongfully dismissed, they are entitled to be rewarded for their damages, also known as a severance package.
Damages are considered to be monetary compensation, provided for the employee to sustain their livelihood until they find another job. Damages are only rewarded if the employee was not given reasonable notice. The factors which determine a timeframe of how long before an employee should be given 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
· Whether the employee was induced to leave secure, prior employment
· The availability of comparable alternate employment
· Whether there is an enforceable written employment contract that limits or otherwise addresses notice entitlements upon termination of employment
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. In essence, the employee must be given 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.
The legislation which deals with Ontario workplaces is the Ontario Employment Standards Act (ESA), managed by the Ministry of Labour through the Employment Standards Program. The Employment Standards Program receives, examines and resolves the workplace complaints and encourages compliance with the ESA.
The ESA delineates several important elements in a workplace setting such as the minimum wage, vacation, overtime pay, leaves of absence and termination. It also sets the minimum standard on the guidelines a workplace must follow in order to operate legally in Ontario.
Along with the ESA, Ontario common law also supports and provides compensation to employees who have been wrongfully dismissed. The financial rewards provided through common law usually exceed the minimum damages rewarded under the provisions of the ESA.
If you have experienced conflict at your workplace, or believe that you may have been wrongfully dismissed, our lawyers at Tailor Law Professional Corporation are well-equipped and highly trained in providing you with assistance. If you have any questions, please do not hesitate to contact us at 905-366-0202, or visit our website here.
Wrongful Dismissal and Mental Distress – LexisNexis