What exactly is wrongful dismissal?
An employer in the Province of Ontario has the right to terminate your employment. I know, shocking right? And you don’t have to have done anything wrong. This is often surprising to people, and they immediately ask ‘why’:
• Why would my employer walk me out?
• Why haven’t they given me a reason for my termination?
• Why am I the one being terminated?
The short answer is, your employer is not obligated to have a why, let alone tell you what it is. Also, your employer doesn’t have to tell you in advance, nor do they have to give you a reason. The truth is, you may never know why you are ‘the one’. So the next question inevitably is, was it wrongful dismissal? The wrongful part of the dismissal (and what is often referred to as wrongful dismissal) occurs if an employer fails to provide you with proper notice or proper severance upon termination.
Being called into a meeting to be told your employment is terminated is difficult. Hands down, it will raise a ton of emotions and questions for you. If you are asked to sign anything at the time of termination, please note you are ALWAYS entitled to seek independent legal advice first, and you should. And no, a quick internet search will not suffice.
Employment relationships are often complicated legal relationships. The best advice anyone could give you is to speak with a lawyer about employment law and your termination.
So now what?
If you signed an employment contract that contains a termination clause, then you may have already agreed to the amount of notice and severance that the employer owes to you.
Signing an employment contract with a termination clause will only be enforced by a judge if it is drafted properly. There are many cases in Ontario where judges have not enforced a termination clause because of issues with the language such as where the clause is too vague, or the clause potentially violates the Employment Standards Act (Ontario). A consultation with an employment lawyer will tell you whether the termination clause in your contract is enforceable.
Without an employment contract, you are generally entitled to reasonable notice under the common law. This amount, or how the notice is to be calculated, depends on a number of factors that were set out by the Court in Bardal v. Globe and Mail Ltd., and include:
- Type of work and degree of expertise or training
- Length of service
- Age of employee
- Quantum of compensation
- Availability of alternate employment
- Circumstances surrounding the hiring of the employee
Through the application of these factors (since this 1960 case was decided) some general rules have emerged:
- Reasonable notice may be upwards of one month notice per year of service
- Notice periods are capped at 24 months
- Longer notice periods for highly skilled and senior employees are reasonable
- Longer notice periods for short-term employees
- Employees close to retirement may be ‘bridged’ to age 65 or age of reasonable retirement
However, keep in mind that the law is complex and the answer is based on all applicable employment court decisions, not just Bardal. And then there is the issue of mitigation (link to JM blog post) which is a whole other story blog.
The material and information in this blog and this website are for general information only. They should not be relied on as legal advice or opinion. The authors make no claims, promises, or guarantees about the accuracy, completeness, or adequacy of any information referred to in this blog or its links. No person should act or refrain from acting in reliance on any information found on this website or blog. Readers should obtain appropriate professional advice from a lawyer duly licensed in the relevant jurisdiction.