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This article quickly and efficiently explains the difference between Wrongful Dismissal and Termination without Cause. It's a good way to identify if you may have been a victim of wrongful dismissal

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Employment Law: Wrongful Dismissal & Termination Without Cause

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Have you ever wondered what the difference is between wrongful dismissal and termination without cause? Read on as MyLegalAnswers tackles these issues.

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This article identifies was is and isn't Wrongful Dismissal, as well as the qualifications for Wrongful Dismissal. This is important, since many fired employees believe they qualify for a wrongful dismissal when in they often don't.

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A wrongful dismissal occurs when an employer either: (i) terminates an employee without cause but fails to provide the employee with sufficient notice of dismissal; or (ii) terminates an employee for cause without providing any notice of dismissal in circumstances when the employer did not have just cause to dismiss the employee.

A wrongful dismissal is a breach of contract.

It is called a "wrongful dismissal action" when an employee commences litigation against his or her former employer seeking monetary damages because the employer failed to provide the employee with proper notice of dismissal. This includes situations where the employee has been constructively dismissed.

The term "wrongful dismissal" is often misunderstood. It does not mean that the employer's decision to dismiss the employee was improper or unlawful. Both the employee and employer have the right to terminate the employment relationship for any lawful reason as long as the other is provided with sufficient notice. All that needs to be reasonable is the length of the notice.

The decision to terminate the employee's employment may be unfair, inexplicable, or an obviously a bad business decision. For example, a manager may dismiss an employee simply because the manager does not like the employee. To give an even more bizarre example, it is not a wrongful dismissal if an employee has been dismissed because a manager became angry after learning that the employee showed up to work wearing the same shoes as the manager.

In all of these examples as long as the employer provides the employee with a severance package representing sufficient pay in lieu of notice of dismissal the termination will not be considered to be a wrongful dismissal.

For example in Joss Covenoho v Pendylum Inc. the employee was dismissed without cause only three months after she joined the company because she refused a criminal background check. The employee had not been notified of the need for a background check prior to joining the company. The court found that she had not been wrongfully dismissed because she had been provided notice pursuant to the terms of her employment contract.

How a court calculates a dismissed employee's entitlement to a severance package is discussed in detail in the chapter titled Termination without Cause.

There is a common misconception that when an employer terminates the employment of an employee without cause the dismissal itself is a breach of contract. However, a breach of contract only occurs if the employer fails to provide the employee with proper notice of the dismissal. There is an implied term in every contract of employment that either party may terminate the contract by providing reasonable notice of dismissal.

The term "reasonable notice of dismissal" refers to the employer's obligation to provide the employee with sufficient working notice of dismissal. During the working notice period the employee is expected to continue to work for the employer under the terms and conditions of his or her employment contract.

The fact that an employer is expected to provide an employee with working notice of dismissal may surprise many readers who believe, incorrectly, that the proper way to dismiss an employee is for the employer to notify the employee that his or her employment has been terminated and to provide the employee with a severance package. Indeed, many people are unaware that an employer even has the legal right to provide an employee with working notice of dismissal. A severance package is actually the employer paying the dismissed employee damages for its failure to provide the employee with working notice of dismissal.

An employer's decision to dismiss an employee must be lawful. A dismissal is illegal if the was discriminatory and, therefore in breach of the . A dismissal will also be illegal if, as an example, the dismissal was a reprisal for the employee attempting to enforce a right provided by the Employment Standards Act or the Occupational Health and Safety Act. An employee who dismissal is illegal may have the right to be reinstated into his or her former position as well as other remedies not available to an employee who was wrongfully dismissed.

The right of an employer to dismiss a non-unionized employee at any time is one of the major differences between the rights enjoyed by unionized and non-unionized employees. A unionized employee may normally only be dismissed if the employer has just cause or because of a lack of work.

If the employer has not provided the employee with sufficient notice of dismissal or pay in lieu of notice of dismissal the only leverage the dismissed employee has to negotiate a fair severance package is to commence a wrongful dismissal action. This includes cases where the employer has terminated the employee's employment for cause. In a wrongful dismissal action the former employee will ask the court to order his or her former employer to award damages (e.g. an award of money) for the employer's failure to provide proper notice of dismissal. The employee will also ask the court to order the employer to pay a portion of his or her legal costs.

If a court finds that an employee has been wrongfully dismissed, the court will award the dismissed employee damages (i.e. an award of money) for the employer's failure to provide reasonable notice of dismissal. The purpose of wrongful dismissal damage award is to compensate the dismissed employee for the employer's failure to provide sufficient notice of dismissal. It is not a reward for long service or a bonus. It is also not meant to penalize the employer because it decided to dismiss the employee.

A claim for wrongful dismissal damages is subject to the employee's duty to mitigate. The award of damages will be reduced by the amount of employment income the dismissed employee earned from other employment sources during the notice period, unless the terms of employee's employment contract did not require the employee to mitigate his or her damages.

Dismissed employees who initiate wrongful dismissal actions may claim other types of damages against their former employers such as moral damages and/or punitive damages in addition to wrongful dismissal damages . Moral or punitive damages may be available to dismissed employees when the employer has acted in an unduly insensitive or malicious way.

Although the threat of litigation and commencing litigation is the only leverage a dismissed employee has when negotiating a severance package with a former employer it is important to understand that the vast majority of cases are not decided by a judge but, instead, are resolved when the employer and former employee voluntarily agree to settle their dispute. The terms of settlement will normally also include the employer paying a portion of the employee's legal costs.

A wrongful dismissal must also be distinguished from an "unjust dismissal" in breach of the Canada Labour Code ("CLC"). The CLC is a statute that applies to federally regulated employers such as banks and interprovincial transportation companies. An employee working for a federally regulated employer may only be terminated if: (i) the employer has something akin to just cause to dismiss the employee; or (ii) if the employee has been dismissed as a result of the "discontinuance of the job function". In other words, the employer may dismiss the employee because of lack of work or as a result of a corporate restructuring that resulted in the elimination of the employee's position. This protection does not apply to certain managers and supervisors. Federally regulated employees have the option of claiming unjust dismissal and pursuing a claim under adjudication provision of the CLC or initiating a wrongful dismissal action. The adjudication process under the CLC differs from a wrongful dismissal action because the adjudicator has the authority to reinstate the dismissed employee into his or her former position. An adjudication under the CLC is also supposed to be more efficient and cost effective than a wrongful dismissal action, although it is debatable whether this is true in practice.

An employee dismissed from a federally regulated employer also has the option of initiating a wrongful dismissal action.

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Wrongful Dismissal in Ontario - Employment Law 101

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A wrongful dismissal occurs when an employer either: (i) terminates an employee without cause but fails to provide the employee with sufficient notice of dismissal; or (ii) terminates an employee for cause without providing any notice of dismissal in circumstances when the employer did not have just cause to dismiss the employee.

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How Do I File A Lawsuit For Wrongful Dismissal?

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How Do I File A Lawsuit For Wrongful Dismissal?

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This article gives a short description on how one could file a lawsuit for wrongful termination in Ontario. This explains the general steps and planning involved with damages, claims, and courts.

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If you have been dismissed from your employment without a good legal reason and have not been given proper notice, or pay instead of notice, you have been wrongfully dismissed and you have rights under the law.

Before beginning a lawsuit, it is a good idea to try to negotiate or mediate a settlement with your employer, as lawsuits can take quite a long time and are costly. If you are unsure about what your rights are, it is important to consult with a lawyer before you sign anything or put your demands in writing. Even if you have been given notice or pay instead of notice, you may be entitled to additional wages or severance pay. If you think you were wrongfully dismissed and you want to know your legal options or start a lawsuit, you should consult a lawyer.

Negotiation

If you feel that you are sure about what your rights are, the fastest and easiest solution is for you to resolve the problem with your employer in person. It is a good idea to set up a meeting time in order to discuss your concerns and negotiate a settlement. Before attending such a meeting, you should write down any information you feel is relevant.

If the employer fails to meet with you, or will not agree to what you have asked for, you can then hire a lawyer, or begin a lawsuit. Often, a strongly worded letter from an employment lawyer is enough to encourage an employer to pay the amount requested. If the employer still refuses to pay you what you are owed, you may then choose to take them to court.

Suing for wrongful dismissal

In Ontario, if the amount you are claiming is $25,000 or less, you have the right to sue your employer in Small Claims Court. If the amount is greater than $25,000, you will have to start the lawsuit in a higher court. In many cases, employers do not want the expense of going to court, and may prefer to pay the employee to settle the matter. Few cases actually get to trial and they may settle at any stage of litigation. Normally, you or your lawyer will want to try negotiating with your employer before the lawsuit goes to court.

If you decide to sue your employer, you can ask for three types of compensation.

First, you can claim that you were wrongfully dismissed and ask for the amount of money which equals the notice period you were entitled to.

Second, if your employer fired you in a way that was cruel or humiliating, and because of this you suffered mental distress, you can ask for special compensation.

Third, if your employer fired you in a malicious way or with the intent of causing you personal embarrassment or harm, you can also ask for money to be awarded to you as a way of punishing the employer for their actions. Usually, claims for mental distress and punishing the employer are only allowed in very extreme cases.

The chances of you winning in court will depend on the details of your situation.

Mediation or arbitration

In some cases, the court will refer the case to mediation. Mediation or arbitration may also be required if your employment agreement includes clauses which deal with these alternative dispute resolution processes.

Mediation is the process of trying to solve disagreements between people or companies without going to court. It is a form of negotiation that is chaired by a neutral person, called the mediator. The mediator has no personal interest in the outcome of the mediation, and is there on the agreement of all the parties. If the parties are able to solve their disagreement with the assistance of the mediator, they can write up the agreement in the form of a contract with their lawyers.

Arbitration is a quasi court proceeding although there is much greater flexibility in an arbitration. The arbitrator is a neutral party, whose role is to hear both sides of the case and make a ruling. The people in the dispute select the arbitrator. The arbitrator's decision is final and binding, and can be enforced in the same way as a judgment of the court. For more information, refer to the Arbitration and Mediation section of Legal Line.

A criminal record will appear on an employment police check and will affect your ability to get or keep a job. To erase your criminal record, call toll-free 1-800-874-2652 or learn more at Parole Board of Canada. It's easier than you think.

For legal advice and assistance with employment matters, contact our preferred Employment lawyers, Samfiru Tumarkin LLP .

If you have been wrongfully dismissed because of an injury, contact our preferred Personal Injury lawyers, Bergmanis Preyra LLP . They offer a free consultation and do not charge up-front fees.

If you have lost your job and are considering taking action against your former employer, find out your chances of winning before you go to court. Contact our preferred experts, Blue J Legal. They use software powered by artificial intelligence to predict legal outcomes with 90%+ accuracy and provide reports that tell you your chances of winning and reasons why.

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Employee options if wrongfully dismissed: Negotiation, mediation, lawsuit - Legal Line

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If you have been dismissed from your employment without a good legal reason and have not been given proper notice, or pay instead of notice, you have been wrongfully dismissed and you have rights under the law.

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Sadly, Wrongful Dismissal only covers termination without notice AND cause. Read the "What is Wrongful Dismissal" article to see the how this changes when there is cause but no notice.

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It all starts with the complaint. This simple chart explains the authorization process for how a claim of unjust dismissal is settled.

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This newspaper article shows two very different cases of Wrongful Dismissal, one of which was lost while the other had won. The top case lost on the account of there being a reason for termination, and the bottom case won because the termination was not explained or justified, and there was no compensation.

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A short video that explains the ways severance can affect a claim for wrongful dismissal.

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Were You ACTUALLY Terminated Wrongfully?

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Were You ACTUALLY Terminated Wrongfully?

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This video explains 10 common misconceptions about

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Wrongful Dismissal in Canada: 10 Common Misconceptions

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How do you decide which court to visit in Ontario to file such a claim? Combine this video with the third article to gain a complete understanding on the legal process in submitting a wrongful dismissal complaint.

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Wrongfully Dismissed in Ontario: Choosing the Right Court

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Geoffrey Stevens Case