WHAT IS A WRONGFUL DISMISSAL?
Wrongful dismissal is a termination from employment without proper notice of termination or severance. If you have been dismissed from your employment, our employment law firm will provide a free consultation to determine if you have in fact been wrongfully dismissed.
An employer has the right to terminate an employee at any time, for any reason whatsoever, so long as notice of termination or payment in lieu thereof is provided in accordance with the Employment Standards Act and the common law in Ontario. This is typically referred to as a “termination without cause.”
NOT ALL TERMINATIONS ARE WRONGFUL DISMISSALS
If you have been terminated from your employment, for cause or without cause, it does not automatically mean that you have a case for wrongful dismissal. A wrongful dismissal claim arises when an employee has not been provided notice of termination or reasonable pay in lieu of notice of termination in accordance with the Employment Standards Act and the common law. In other words, if your severance package falls below the amount which a Court would award in the same circumstances, you will have a claim for wrongful dismissal.
Employers most frequently will offer a terminated employee a severance package that falls below their obligations that are established in our employment law. The employer’s rationale for intentionally wrongfully dismissing employees is their hope that an employee fails to consult with a wrongful dismissal lawyer for a review of the severance package, and the fired employee blindly accepts the initial offer of severance.
WHEN IS IT A WRONGFUL DISMISSAL?
As previously mentioned, you do not automatically have a case for wrongful dismissal where you have been terminated from your employment.
An action for wrongful dismissal typically arises in the following situations:
- Where an employer terminates employment without cause but refuses to pay adequate compensation, which is determined by (among other things) your position at the company, your length of service with the company, your age, education and training, the likelihood that you will be able to obtain alternate employment, and other factors including whether you are or were on disability or pregnancy leave at any time around the date of termination;
- Where an employer inappropriately alleges there is just cause for the dismissal and fails to pay any compensation when the employment relationship is severed. We often come across these situations where employers believe that an employee’s incompetence or absenteeism is sufficient basis to terminate for cause; however, the Courts will only view a just cause termination to be justified in the clearest and most convincing circumstances; and
- Where an employer, by altering fundamental terms and conditions of employment and/or by making the work environment intolerable, “constructively” dismisses an employee, to the extent that the employee cannot continue to work in the hostile environment and essentially ‘involuntarily’ resigns from the employment.
There are a number of factors evaluated by the Court in
determining the length of severance pay in your unique circumstances. Call us today and we will review your severance package for free.
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