Wrongful Dismissal Laws in Canada

Employers can be fickle. Workers can be terminated for silly reasons while others (who rightly should be let go) keep their jobs forever. Wrongful dismissal is defined as “being fired from a job without an adequate reason or without any reason whatsoever.”

The difference between dismissal without cause (which can be appropriate) and wrongful dismissal is usually a notice of termination. The preceding notice must be given within the appropriate timeframe dependant on how long the employee has been with the company, contract stipulations, if the employer acted in bad faith and other factors, but if done correctly, is considered dismissal without cause and not wrongful dismissal. Situations may require the employer to terminate the employee based on poor performance, corporate restructuring or other reasons. Wrongful dismissal requires that the employer forewent giving notice within the appropriate timeframe or the reasons for dismissal were egregious.

Like dismissal without cause, employers may also have ‘just cause’ to dismiss an employee. In these circumstances, employers can prove that whatever infraction the employee committed was severe enough to justify immediate dismissal without or with limited notice. The definition of just cause is malleable and the courts use a variety of factors (seniority, severity, etc) when determining it.

A constructive dismissal is a subset of wrongful dismissal that does not involve an actual termination. In these cases, an employee is, in essence given an ultimatum between choosing something unsavory or quitting. Examples include a large decrease in pay or hours, change in job responsibilities and forced relocation. The employment contracts and specific circumstances surrounding the case play a large role in indicating as to whether or not an employee was constructively dismissed.

The easiest way to pursue a claim against an employer is to file an employment standards claim. These claims are capped at $10,000 but are less of a hassle than a civil suit. This option is more viable for those terminated from low-salary positions. Note that once a claim has been filed, civil action is out of the question.

For any amount over $10,000, an employee with his or her lawyer must bring a civil suit against their former employer. There is no cap on how much an employee can recover, but they must be able to prove that 1. They were wrongfully dismissed 2. They have made adequate steps towards getting a new job (mitigate damages). This does not mean a chemist must accept a position as a high school janitor while they await a hearing to mitigate damages. Employees have a right to refuse work they feel ‘is not in their own best interest’ or is not of the same caliber as their previous position, but they must actively look for new employment.