Wrongful Dismissal

A non-union employee has the right to commence an action for damages against an employer if their employment is terminated without cause (without a lawful reason) and the employer fails to provide proper notice or payment instead of notice.

The employer’s obligation to pay damages is based upon the notice provisions of any employment contract or, in the absence of an enforceable contract, on “the reasonable period of notice”.  Reasonable notice is based upon a number of factors such as length of service, age, position with the employer and level of earnings.  The upper range of reasonable notice is generally 24 months, although some cases have awarded more.  Employees are generally entitled to compensation for all remuneration lost during the reasonable period of notice.  This includes loss of salary, commissions, bonuses, pension, insurance benefits, automobile and stock options [See Damages].

Employees often believe that they are only entitled to what is provided under the Employment Standards Act.  That is only a minimum.  In fact making a claim for termination pay or severance pay under the Employment Standards Act will prevent an employee from later claiming more significant damages at common law.

Sometimes an employer will claim that there is cause for the termination of employment because of an employee’s misconduct and therefore no legal requirement to provide notice or to pay damages.  However, there is a high hurdle for an employer to overcome to successfully claim cause for termination of employment.  Cause requires such serious misconduct that after examining all circumstances and taking a balanced approach the penalty of termination of employment is justified.