What Constitutes Wrongful Dismissal in Canada?
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. Wrongful dismissal can include the following 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.
The amount of reasonable 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've 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 Region?
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.
What is a Constructive Dismissal?
A constructive dismissal occurs when an employee resigns as a result of the employer creating a hostile work environment. Since the resignation was not truly voluntary, it is, in effect a termination.
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.