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What’s Wrongful Dismissal? In Ontario the employer has the right to terminate the services of an employee without assigning any reason whatsoever – dismissal without cause. No matter how good an employee may be and irrespective of his or her seniority, an employer can terminate the employment without assigning any reason provided the employer provides the employee with proper notice of termination or pay in lieu of the notice and the termination is not in contravention of the Ontario Human Rights Code. If the employer terminates the employment without providing the reasonable notice the dismissal is wrongful. The law provides two types of notice entitlements. The first is the statutory notice pursuant to the Employment Standards Act and the second is pursuant to the common law. The statutory notice is a predefined notice period based on the length of employment that the employer is required to provide without any mitigation obligation on the part of the employee. The common law notice on the other hand is dependent on several factors including the length of employment, the seniority within the organization and the age of the employee. The common law notice is subject to mitigation efforts by the employee. Mitigation is the obligation that the law imposes upon the dismissed employee to actively look for alternate employment subsequent to the termination of the employment. If your employment has been recently terminated, and you want to find out if the severance offered by the employer is fair, Email or call Shashi Raina at 905-502-3484 for a no obligation consultation. Dismissal with Cause An employer may terminate the employment of an employee without any obligation to provide notice or pay in lieu of notice where the employer has grounds for such termination - termination for cause. The common grounds for “just cause” termination include non-performance, misconduct, fraud, negligence etc. Depending on the nature and severity of the cause, the employer is required to provide the employee an opportunity to rectify the concern before the employment can be terminated with cause. However, in cases of serious issues like fraud or misappropriation of employer’s monies no warning may be necessary and the employment can be terminated immediately. The threshold for establishing "just cause" is high and generally it’s difficult for an employer to be successful on a “just cause” defence in a wrongful dismissal lawsuit. Do you feel you are being setup for a “just cause” termination? Email or call Shashi Raina at 905-502-3484 for a no obligation consultation. Constructive Dismissal Where the employer imposes unilateral fundamental change on the terms and conditions of the employment the employee is considered to have been constructively dismissed, who may be entitled to resign while maintaining the entitlement to pay in lieu of reasonable notice. The most common examples of fundamental change that can give rise to constructive dismissal are removal of important job responsibilities (demotion) and significant reduction in salary, compensation or benefits. Constructive dismissal can also arise where continuation of employment becomes impossible due to persistent workplace harassment or discrimination. Every potential constructive dismissal situation must be assessed in its own fact scenario and there is no “one size fits all” approach to constructive dismissal. Before you claim constructive dismissal it’s very important to consult an employment law lawyer. Are you in a constructive dismissal situation? Email or call Shashi Raina at 905-502-3484 for a no obligation consultation. |
