Have you been fired without proper notice or pay in lieu of notice?
If the answer is yes, then you may have experienced a wrongful dismissal. Wrongful dismissals are commonplace.
In some cases, a wrongful dismissal can result in a large settlement or court award for the terminated employee.
There are three different types of terminations that can form the basis of a wrongful dismissal: termination without cause, termination for cause, and constructive dismissal.
Termination without cause means the termination was for reasons unrelated to the employee’s conduct.
Termination for cause means the employer is alleging the employee committed misconduct worthy of termination.
Constructive dismissal means the employer unilaterally altered a fundamental term or condition of the employment relationship and the employee wishes to treat the employment as terminated. This includes things like demoting an employee or reducing their salary.
An employer who plans to terminate an employee is usually obligated to provide reasonable notice of termination. Courts have imposed this obligation so that employees who lose their jobs have sufficient time to find other employment.
An employer can provide notice as “Working Notice” or as pay in lieu of notice. Working notice means the employer tells the employee the employment relationship will end at a specified date in the future and the employee continues working until that date.
Pay in lieu of notice means the employer terminates the employment immediately and provides the employee a lump sum payment or salary continuance throughout the notice period.
If the employer terminates a worker’s employment for cause, the employer does not have to provide notice or pay in lieu of notice. Only serious misconduct like theft or workplace harassment is sufficient cause. An employee can dispute the claim that the employer had sufficient reasons to terminate for cause.
The length of the reasonable notice period is determined by looking at factors that past court decisions have considered. Two common factors are the length of the employment and the employee’s level of responsibility.
It is challenging to determine what is a reasonable notice period. It can be further complicated if there is a written agreement that includes a termination clause that purports to minimize the employee’s entitlement to notice.
If an employee suspects they have been wrongfully dismissed, they should immediately seek legal advice. They should not accept the employer’s first offer.
A lawyer is able to determine the appropriate notice period and explain the implications of the employment agreement.
A lawyer can also assist with disputing a termination for cause, starting a successful claim for constructive dismissal, and identifying other relevant legal issues. One such issue is an employee’s obligation to mitigate (or, lessen) their losses through a diligent job search.
At CKLC, we provide advice to people who have been fired. If your case has merit and your family income is low, then the legal clinic will represent you. If your family income is not low enough to qualify for our services, we will refer you to the private bar.
Travis McKay, CKLC Employment Law Lawyer (www.cklc.ca, 519-351-6771)
