Wrongful dismissal occurs where an employee is terminated without just cause, and without reasonable notice.
An entitlement to reasonable notice is implied in all contracts of employment. If an employee was wrongfully terminated, they may have claim for the amount of reasonable notice. This is assessed based on the following factors: the character of their employment, the length of service, the employee’s age, and the availability of similar employment given the employee’s experience, training, and qualifications. There may also be a claim for damages related to mental distress suffered or for punitive damages, though these are ordered in rare and exceptional cases.
In Di Tomaso v Crown Metal Packaging Canada LP, 2011 ONCA 469, a relatively low-level employee who worked for 33 years as a two-piece mechanic and press maintainer brought an action for wrongful dismissal. The court of appeal upheld the trial judge’s award of 22 months of severance pay, holding that the maximum length of notice for clerical employment should not be capped at 12 months based on the employee’s character of employment. Importantly, this suggests that no one factor in the assessment of reasonable notice is given overwhelming significance in the calculation and a holistic view of the circumstances will govern.
However, under the common law, an employer may dismiss an employee without reasonable notice provided it has “just cause”.
What qualifies as “just cause” for termination?
This is also a question of fact, but in general, courts have found that conduct justifying dismissal for cause may include, depending on the circumstances, frequent absenteeism, illegal conduct such as fraud or theft, alcoholism or drug abuse, harassment, long-term illness, and dishonesty that reaches the level of being incompatible with the employment relationship as a whole. Often times, an employer may wrongfully believe that they have just cause for dismissal, and there are many ways that this can be challenged.
Under the common law, there is also a duty imposed on employers to act in good faith in the course of terminating an employee.
If you believe that you have been wrongfully dismissed, please give us a call for a free consultation. Please remember that there is no fee if we do not recover any money from your employer.