Employment Law-Know Your Rights
Have you lost your job recently? Do you know your rights as an Employee?
Employment Law is confusing and it is hard to know your rights as an employee when you have lost your job. Below you will find frequently asked questions about wrongful dismissals and terminations.
What is a wrongful dismissal?
A wrongful dismissal occurs when an employee is dismissed or terminated by their employer and was not provided reasonable notice.
What constitutes a wrongful dismissal?
Wrongful dismissal can include situations:
- Where an employer has been constructively dismissed,
- where an employee was inappropriately terminated for just cause, and
- where an employer terminates an employee without cause and fails to compensate an employee or provide reasonable notice.
What is reasonable notice?
The amount of notice required varies on a wide range of factors including, your jurisdiction, the circumstances of your dismissal, how long you had been working for the employer, and the current job market. As a result, it is important to consult with a lawyer to determine the appropriate notice period for your circumstances.
What should I do if I have been wrongfully dismissed?
If you have been dismissed from your job you should contact an experienced employment lawyer in your jurisdiction to help guide you through the process. Each case is different and a lawyer can provide you with valuable advice. For example, a lawyer can provide you with information on your likelihood of success, whether a severance package you received was fair, or even help you negotiate a better settlement. Your lawyer will discuss the next steps with you, which could include beginning negotiations or filing a legal action.
In addition to contacting a good lawyer if you have been wrongfully dismissed you should begin documenting everything. Start by gathering any documents relating to your employment, any documents relating to your dismissal, including any emails between you and your employer, and write down everything you can remember relating to the dismissal. Then provide these documents to your lawyer at your first meeting.
Do wrongful dismissals vary by jurisdiction?
Yes, wrongful dismissals can vary by jurisdiction. Each province and territory have employment standards and each province may apply common law differently given the contextual circumstances of the case. As a result, it is important to consult an employment lawyer with expertise in wrongful dismissal. This is especially important if you are unsure if you have been wrongfully dismissed because a lawyer can consider your specific circumstances, how employment standards have been interpreted by the courts, and consider how employment law may be applied.
What remedies do I have?
If you were wrongfully dismissed you may be entitled to damages to put you in the position you were in had your dismissal not occurred, typically this would include compensatory damages for the reasonable notice period.
If you recently lost your job, it is important to note that you do have a duty to mitigate your damages by finding a new job in your field. As a result, you may want to document your job search so you have evidence that you have taken steps to find comparable employment while you wait for the results of your legal action.
Constructive Dismissals
What is a constructive dismissal?
Constructive dismissal occurs when the employer’s conduct indicates an intention to no longer be bound by the employee’s contract. The employee has a choice. They can accept the change or conduct of the employer or they can treat the change as a repudiation of the contract and sue for wrongful dismissal. Since the employer did not dismiss the employee their conduct is referred to as constructive dismissal (see Potter v New Brunswick Legal Aid Commission at para 30) .
It is challenging to determine whether or not a constructive dismissal has occurred. If you believe your employer’s conduct might indicate that they are no longer bound by your employment contract you should consult an employment lawyer. The test for determining if an employer’s change or conduct would amount to constructive dismissal is outlined in the Supreme Court of Canada case Potter v New Brunswick Legal Aid Commission and is very contextual:
- First, it must be determined if there is a substantial breach of the employment contract? (see Potter v New Brunswick Legal Aid Commission at para 34-36)
- Then, you must ask whether a reasonable person would believe the employer no longer intended to be bound by the employment contract (see Potter v New Brunswick Legal Aid Commission at para 42-43).
An employment lawyer can consider your circumstances and help you determine if your circumstances arise to a constructive dismissal. The results can vary depending on your jurisdiction.
Termination with Cause
Just cause is a legal term that means an employer is justified in terminating an employee without providing reasonable notice or payment instead of notice. Common reasons for termination with a just cause are serious misconduct, habitual neglect of duty, incompetence, conduct incompatible with duties, or willful disobedience.
What constitutes termination with just cause?
The test for just cause is outlined in employment standards for your jurisdiction, as a result, the test can vary. However, in 2001, the Supreme Court of Canada outlined the test for just cause in McKinley v BC Tel. This test is contextual, meaning it needs to be considered in the circumstances of the case and has two steps:
- Has the Employee’s misconduct been established?
- If yes, does the nature and degree of the employee’s misconduct warrant a dismissal?
It is important to consult an employment lawyer in your jurisdiction to determine If the circumstances arise to the level of just cause. If not, then you may have a wrongful dismissal action and be owed either reasonable notice or severance pay from your employer.
Termination without Cause
Termination without cause occurs when an employer terminates an employee without any misconduct on their part. However, if an employer terminates without cause, they are required to provide you reasonable notice or payment in lieu of notice.
What constitutes termination with cause?
Every province or territory has employment standards. These standards outline the definition for reasonable notice and what payment is required instead of notice. This can vary depending on the length of your employment, your jurisdiction, and the circumstances surrounding your termination.
If you have been terminated without cause and provided notice or payment in lieu of notice, it is important to consult an employment lawyer. They can help you determine if the package is fair.
If your employer terminates you without cause and has not provided you with notice or payment you may have wrongful dismissal case.
The circumstances surrounding each dismissal is different and vary depending on your contract or jurisdiction. Have more questions? Aren't sure if you have been wrongfully dismissed? We want to help. Book a 15-minute legal advice session with a Goodlawyer and find out what your options are.
