Wrongful Dismissal
Generally, an employer is permitted to terminate an employee at any time without just cause provided they give that employee reasonable notice or pay in lieu of reasonable notice. The Employment Standards Act, SO 2000, c 41 (the “ESA”) provides minimum notice periods, which is typically one week for every year of service up to a maximum of 8 weeks. The rules under the ESA about termination and severance of employment are minimum requirements.
Some employees may be entitled to additional notice under the common law but because such rights generally cannot be enforced under the ESA, these employees may want to sue their former employer for “wrongful dismissal”. Employees should be aware that they cannot sue an employer for wrongful dismissal and file a claim for termination pay or severance pay with the Ministry of Labour for the same termination or severance of employment: an employee must choose one or the other.
As mentioned previously, an employee may be entitled to a notice period beyond the statutory minimum. This “reasonable notice” period will depend on a number of factors such as the character of employment, length of service, age of the employee, and availability of similar employment (the determination of which will depend on the experience, training and qualifications of the employee). This list is not exhaustive.
Depending upon the facts of the case, other factors may apply in determining the length of reasonable notice, for example whether the dismissed employee was induced to leave previous secure employment. The amount of reasonable notice is a question of fact and will turn on the unique circumstances of each case.
An employee, however, has a duty to lessen their damages. Put another way, an employee has a positive legal obligation to try and find alternate employment. Still, an employee is not required to accept a job that is substantially different or a job that pays significantly less. The obligation is to look for and accept alternate employment which is in the employee’s own best interest.
The most common points of contention in a typical wrongful dismissal dispute are usually: (1) determining the length of the reasonable notice period and what employee benefits should be included during this period; and (2) the amount that ought to be deducted for reasonable mitigation.
The above information is provided as a source of general information only and should not be used to replace the advice of a lawyer. If you have been recently terminated, it would be prudent to have an employment lawyer review the offered severance package to determine whether it is fair and reasonable in the circumstances.
Michael Gunsolus is a partner with Ayotte Dupuis Gunsolus O’Neill Law Offices and has represented both employees and employers in wrongful dismissal disputes.
Michael can be reached at:
Tel: (705) 748 2325 Ext 288
E-mail: michael@adolawfirm.com