Wrongful Dismissal

Introduction
Have you been fired? Are you concerned about your rights? The following information discusses what you can do if you are a non unionized employee, have lost your job and you feel that your employer has treated you unfairly. If you are a union employee, look in your collective agreement for the sections on termination of employment.

The Bottom Line
If your employer fires you without a good reason, you are legally entitled to advance warning, or notice.
If your employer did not give you notice, then you are entitled to compensation instead of notice.

Dismissal for Just Cause
Loosely translated, this means being fired for a good reason
Your employer can fire you on the spot, without giving you notice, if they have just cause.

Some examples of dismissal for just cause include:
• Stealing from your employer
• Purposefully disobeying important, direct instructions
• Acting in an extremely insulting and disrespectful manner
• Breaking conflict of interest guidelines or the employer's code of ethics
• Starting a business on the side, in competition with your employer's business.

Sometimes, an employer fires an employee not because of any one event, but because of a series of events. Examples include:
• Repeated, documented incidents of incompetence that occur over a period of time.
• Repeated warnings to improve work or else risk termination, without any improvement.
• Repeated drug or alcohol abuse which interferes with job performance.

It is very difficult for an employer to prove they had just cause for dismissal. Even in the situations described above, you should consult a lawyer for specific advice.

What if my Employer did not have just cause?
Your employer can fire you without giving any reasons so long as they give you the appropriate notice, or give you compensation instead of the appropriate notice.
The appropriate notice you should receive is set out in your employment contract, if you have one, or else by law.

Notice for Employees of Federally Regulated Businesses
The Canada Labour Code sets the minimum amount of notice to be given to an employee who works in a federally regulated business, such as a bank or an airline.

Notice for Employees of Provincially Regulated Businesses
The Ontario Employment Standards Act sets out the minimum notice requirements to employees of provincially regulated businesses.

If your case goes to court, the court will consider the following in determining how much notice you should receive:
• The length of time you have been with the company
• Your experience
• Your formal qualifications
• The type of job you do
• The likelihood that you will find other suitable work.

If you have an employment contract containing a specific clause regarding the amount of notice you are entitled to. The court will enforce this notice period if:
It is reasonable and;
If the court believes that you knew about it or should have known about it.

Constructive Dismissal
A firing does not always involve someone saying to you "You're fired!". Sometimes, the firing is more subtle.

"Constructive dismissal" is when your employer significantly changes the terms and conditions of your employment without your consent. Some examples include:
• The company you work for reorganizes and you are given a less important position that you are not prepared to accept.
• You are asked to move to a different location when that was not part of your agreement with your employer.

A constructive dismissal is like being fired, even though nobody uttered those specific words.

What are my legal options if I feel I have not received enough notice or termination pay?
You can make a claim for termination pay under the Employment Standards Act or Canada Labour Code.
You can commence a lawsuit against your former employer for wrongful dismissal
If you make a claim for termination pay under the Ontario Employment Standards Act, you will not be able to begin a court action.
Similarly, if you start a court action, you lose your right to request that the Ministry of Labour enforce the minimum notice requirement mandated by the Employment Standards Act.
You must choose one procedure or the other, but not both.

How do I know if I have been wrongfully dismissed?
Your employer might tell you that you are being dismissed for a good reason. You should assess this for yourself with the aid of your lawyer.
The fact that your employer is losing money or reorganizing or that you and your employer do not get along are not reasons to dismiss you without notice.
If your employer dismisses you and gives you notice, you and your lawyer have to assess if the notice is reasonable and fair.

What should I do if I have been wrongfully dismissed?
Do not sign anything until you are sure that the amount of notice you are getting is reasonable and fair.
Do not accept a demotion or transfer if you do not feel it is justified. If you accept the money or demotion or transfer without question. You may lose your right to sue if you later decide it was not enough or it was not fair.
If you are fired, start looking for another job right away. Even if you sue your employer and win, you have a duty to minimize your losses by looking for and finding other employment.
Talk to a lawyer as soon as possible. Every wrongful dismissal situation is different and a lawyer can give you advice about what is reasonable and fair in your case.

How can Pavey, Law, Wannop & Witteveen LLP help?
Call us at (519) 621-7260 or e-mail us at . Our team of experienced lawyers is committed to helping you get on with your life by reaching a fair and just solution to your problem as efficiently and effectively as we can.

Revision Date: November 11, 1999

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