How to identify and take action against wrongful dismissal
Losing your job without any notice, reason, or proper compensation can have a significant impact on your life and finances. In Ontario, there are laws in place to protect employee rights and to help ensure job security. Unfortunately, wrongful dismissals are not uncommon, and many individuals don’t realize when it happens. It’s crucial to know your rights and how to identify a wrongful dismissal so that you can take appropriate action and receive the compensation you deserve.
What is wrongful dismissal?
When an employer intends to end your employment without cause, they must provide you with a notice of termination or payment when there’s no notice. When an employer fails to provide you with either notice or compensation, you may be facing a wrongful dismissal. You are not owed notice or compensation if you are dismissed from your job with cause – meaning, you were terminated due to your own willful misconduct.
How much notice is required?
Laws in Ontario require most employers to provide at least one week’s notice for every year an employee has worked – up to eight weeks. For example, if you’ve worked somewhere for five years, you are owed a minimum of five weeks’ notice. Your employer may require you to continue working during this notice period, or they can dismiss you immediately and pay you for the five weeks’ worth of income. There are some exceptions to the minimum notice period. You may have a more extended notice period outlined in your employment contract, or you may be entitled to ‘common law notice.’
Common law vs. statutory notice
As outlined in the Ontario Employment Standards Act (ESA), statutory notice pertains to the bare minimum amount of notice that every non-unionized employee is entitled to (one to eight weeks). Notice under the ESA is solely determined by years of service. You are entitled to statutory notice if you have worked at your place of employment for a minimum of three consecutive months. Additionally, employees are entitled to their full notice period or pay in place of notice regardless of whether they find a new job during that time.
Common law notice is a significantly greater entitlement (up to 24 months). Common law notice is determined based on the time it may take the terminated employee to find new employment, based on the employee’s unique circumstances. Unique determining factors include:
- The employees’ age.
- Length of service.
- Availability of similar jobs in the same market.
- The character of their employment.
Generally, most employees are entitled to approximately one month of notice for every year of service. However, common law is subject to mitigation. An employee’s duty to mitigate applies when they find new employment before the end of the notice period. Once alternate work is found, the employee is no longer entitled to compensation or the remaining time in their notice period. Employees given common law notice must keep up-to-date documentation of their job search efforts.
Why are there two different types of notices, and why do they vary so much in length? Many employers can avoid common law notice by stating that employees are entitled to at least the minimum notice period outlined in the ESA in their employment contract. Many employment contracts have termination clauses, and often the clauses are found to be invalid. Therefore, it’s exceptionally crucial to have an employment lawyer look over your contract and termination clause before you sign a contract.
What to do after a wrongful dismissal
Following your dismissal, there are steps you need to take to ensure you receive fair compensation. These steps are still necessary even if you’re unsure whether your employer has wrongfully terminated you.
- Collect any documents you have that pertain to your employment, including:
- Tax documents
- Emails or texts regarding your termination or conflicts leading up to your termination
- Pay stubs
- Performance reviews
- Anything provided to you upon your termination
- Write down every detail of your termination, including what your employer told you, dates, times, and names of everyone you spoke with. Having thorough documentation of the situation will help you should you need to prove your case.
- Do not sign any severance offers or letters. Once you sign anything, you immediately lose all possibilities of negotiating or receiving more compensation. You may be giving up your rights.
- Contact an employment lawyer. An experienced employment lawyer can help you understand your rights, negotiate and improve your termination package, or take further legal action if required.
In addition to these steps, there are other options and recourses you may be able to take:
Proving your case
In Ontario, employers do not need a reason to terminate an employee. However, no matter what, they are required to provide reasonable notice when terminating an employee without cause. Therefore, when it comes to proving a traditional wrongful dismissal case, the sole determining factor is whether the employer provided reasonable notice. As mentioned, several factors affect how much notice an employee is entitled to.
Often, you can settle wrongful dismissal cases with the employer before legal action is ever required. An experienced employment lawyer can help you negotiate a settlement and guide you through the process. If you have any concerns about the length of notice you were given or have any general questions about your dismissal and your rights, always contact an employment lawyer. Proving wrongful dismissal can sometimes be a lengthy process; having a solid legal team on your side can make a significant difference in the outcome of your case.