An employer commits wrongful dismissal by breaching the employment contract or provisions of law in the course of terminating an employee. In most cases, an employer may choose to end an employee’s employment by providing sufficient advanced notice or pay equivalent to earnings over the notice period. Notice periods are generally determined by an employee’s length of service. Factors such as age, skill level/position and labour market conditions, among others, may also be a factor in determining the required length of notice if greater entitlements of common law apply.
Employees that are wrongfully dismissed (ie. without adequate notice) will need to contact an employment lawyer. The award for wrongful dismissal is notice equivalent to earnings that would have been paid if proper notice had been given by the employer. Often times, parties will not advance to the trial stages, opting to settle before committing to lengthy and costly court proceedings. In particular, wrongful dismissal cases in Toronto, Ottawa and Windsor will require mediation before a motion proceeds to trial. An experienced employment lawyer will ensure any settlement is fair for the represented employee.
If an employer falls under federal jurisdiction (i.e. falls under the Canada Labour Code), an employer cannot terminate an employee without just cause. Just cause arises from repeated employee misconduct, which must be accompanied by multiple prior warnings. In a rare instance, single acts of misconduct may warrant a just cause dismissal. When an employee covered under the Canada Labour Code is dismissed, they may file a complaint with the Canada Industrial Relations Board (CIRB) within 90 days of the dismissal or pursue damages through court as described in the above paragraph. If pursuing a complaint through the CIRB, the CIRB will award back-pay for all wages lost as a result of the unjust dismissal and may reinstate the employee to their prior job if the complaint is successful.
As wrongful dismissal in Canada is subject to many facets of contract law, employment legislation, and court precedents, the first step is seeking the advice and representation of an experienced employment lawyer. Doing so will ensure you are compensated through adequate notice pay or back-pay in the case of federally regulated industries/business.