Posted: September 24, 2018
By: Rastin & Associates

The answer would be yes, unless you’re unionized.

A lawsuit for wrongful dismissal is only available for non-unionized employees. If you are a unionized employee, you will most likely be obligated to claim through your union’s grievance process under the collective bargaining agreement.

If you are a non-unionized employee and you have been terminated from your job, there are several avenues that are available to you.

  • You can negotiate a termination package with your employer. If you choose this path, we highly recommend that you have an employment lawyer review the package before signing it to ensure that you are getting a fair deal. It is important to note that in most cases, you will likely be entitled to more than what is provided for under Ontario’s employment legislation.
  • If you are not satisfied with what your employer is offering you, or worse, your employer offers you nothing at all, you have the option of commencing a wrongful dismissal lawsuit against your employer. In a wrongful dismissal action, it is important to note the difference between a ‘with cause’ and ‘without cause’ dismissal.

With Cause Dismissal

With cause (also known as “just cause”) means that your employer is taking the position that you have caused a fundamental breach of the employment relationship and made it impossible to continue. This can result from a history of misconduct or from one particularly egregious incident (for example, theft from the employer). If the employer is able to prove that they had cause to terminate your employment, you will not be entitled to reasonable notice or pay-in-lieu-of. However, note that even if cause is proven, an employee would most likely still be able to claim for the statutory minimum termination pay and severance as provided under Ontario’s Employment Standards Act[1].

Where the employer has alleged cause for termination, the employee’s position in a wrongful dismissal action is that the employer did not have sufficient cause and as a result, the employee is entitled to reasonable notice or pay-in-lieu of. 

Without Cause Dismissal

A ‘without cause’ dismissal means that your employer has decided to terminate your employment and is not alleging cause. A non-unionized employee in Ontario can be dismissed at anytime for any lawful reason, provided that the employer gives the employee reasonable notice or pay-in-lieu of. An example of an unlawful reason is terminating an employee for attempting to enforce his or her rights under employee protection legislation such as the Employment Standards Act or the Occupational Health and Safety Act[2]. Further, an employee cannot be terminated due to discriminatory reasons. If you feel you have been terminated for a discriminatory reason, you may have a claim for damages under Ontario’s Human Rights Code[3].

If you are working for a federally regulated employer such as a bank or telecommunications company, you might be entitled to protection under the powerful “unjust dismissal” provisions of the Canada Labour Code[4]. If you have been terminated and your employer is federally regulated, it is recommended that you seek an employment lawyer as soon as possible to obtain legal advice as there is a relatively short limitation period of 90 days to claim under the unjust dismissal provisions.

In a wrongful dismissal lawsuit, where the employer terminated without cause, the employee’s position will be that the employer provided insufficient notice or pay-in-lieu of, and/or that the employer terminated the employee for an unlawful reason.

How much reasonable notice are you entitled to?

The general rule espoused is that an employee gets about one month of reasonable notice for every one year of employment. However, it should be noted that the Ontario Court of Appeal has explicitly warned against reliance on this general rule[5]. While length of service is an important factor in the analysis, other key factors include:

  • Age of the employee
  • Availability of similar employment, taking into account social and economic conditions
  • Character of the employment. For example, it is more difficult for a CEO to find similar employment than a secretary. Therefore, a CEO is likely entitled to a higher notice period than a secretary.

Although courts have rejected the idea of a hard ceiling for reasonable notice periods, it is rare for a court to award notice periods greater than 24 months.

In addition to a claim for a reasonable notice period, employees may also claim for additional compensation known as aggravated and punitive damages. These damages may arise where, during the course of dismissal, the employer engages in bad faith conduct by being untruthful, misleading or unduly insensitive.

Employer’s Contracting out of the Reasonable Notice Period

Some employers attempt to contract out of their obligation to provide an employee with reasonable notice by inserting a provision in the employment contract that upon termination, the employee shall only be entitled to the statutory minimum amount of termination pay and severance. While these provisions are potentially fatal to a wrongful dismissal action, there are various legal arguments to get around them. If you have an employment contract with such a provision, not all is lost. You should contact an employment lawyer to review your employment contract and get advice on whether the limiting provision is enforceable.

The Duty to Mitigate

Employees have a duty to mitigate their loss from the termination.

The purpose of reasonable notice periods is to provide an employee with enough time to find comparable employment. In a wrongful dismissal lawsuit, employers will typically argue that the employee failed to make efforts to find a new job and that had the employee tried, he or she would have been able to secure new employment.

If an employer is able to prove that an employee failed to mitigate their loss, a court will reduce the reasonable notice period and any damage awards accordingly. Therefore, in a wrongful dismissal lawsuit, it is important for employees to document their efforts of attempting to secure comparable employment.

If you have been terminated from your employment and are interested in seeing if you have a case for compensation: call 1-844-RASTIN1 for a free consultation.

 

[1] Employment Standards Act, 2000, S.O. 2000, c. 41.

[2] Occupational Health and Safety Act, R.S.O. 1990, c. O.1.

[3] Human Rights Code, R.S.O. 1990, c. H.19.

[4] Canada Labour Code, R.S.C., 1985, c. L-2.

[5] Minott v. O'Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA).



 
Disclaimer: This blog is intended to provide information on current issues that may affect people in their everyday lives. We have made every effort to ensure that we relay accurate and easily readable content, however, information found here should never be taken as legal advice. Always speak directly to a lawyer for information specific to your situation.

Call us at Rastin & Associates if you have questions concerning your case or any general queries.

Posted under General Info