If you’ve just lost your job unexpectedly or, in your view,
unfairly, you may be able to claim wrongful dismissal. Before you do,
figure out if you’ve got a solid case.
Put simply, wrongful dismissal is when your employment is
terminated without reasonable notice. That abrupt termination breaches
the employment contract and/or applicable employment laws.
There’s no specific legal definition of “reasonable notice,” but courts consider multiple factors, including:
- Type of job (physical labour or managerial work, for example);
- Length of the employee’s service;
- Employee’s age;
- Availability of similar employment.
Canada’s Labour Code says that any employee who has completed
three consecutive months with that employer is entitled to either two
weeks notice or two weeks pay.
You can file a wrongful dismissal complaint with your
provincial or territorial Ministry of Labour if you have completed 12
consecutive months of employment with that employer and you are not covered by a collective agreement.
Changes to your contract can constitute another form of
wrongful dismissal. This “constructive dismissal” occurs when your
employer makes, or announces plans to make, changes to your current
contract, like a salary reduction, demotion or loss of benefits.
Usually, an employee must then accept the changes or resign. You can
still file a complaint about this constructive dismissal without
actually quitting the job.
If you’re trying to determine wrongful dismissal, here’s another important question to ask: Is there cause?
In Canadian law, there are two types of dismissal: with cause and without cause.
Without cause means the employer had no disciplinary reason to
terminate you, Maybe there were budget cuts or your job just isn’t
needed anymore. Regardless, your employer still must provide
“reasonable” notice for proper termination with case.
With cause means you have acted in a way that fundamentally
breached your contract, like theft, disobedience or incompetence. If you
have a documented history of poor workplace behaviour that led to your
termination, it may be difficult to prove wrongful dismissal.
The Canada Labour Program views dismissal as the most extreme
step in a disciplinary process, which is justified for any of three
reasons: incompetence, negligence or misconduct.
Incompetence means you do not have the skills required to do
your job. You can contest this if you were shifted to a different job
and then fired for lacking the required skills.
Negligence means you may have the skills, but you are sloppy, careless or unsafe in performing the job.
Misconduct means you are breaking the rules of the workplace.
If you believe you’ve been wrongfully dismissed and want to
fight back, you have several options. You can file an Employment
Standards claim with your Ministry of Labour, although you may not meet
its criteria for adjudication. If not, you can try your region’s Human
Rights Commission or a civil lawsuit. Talk to a lawyer to determine if
you have a case and what your best options may be.
Criteria and mediation for wrongful dismissal: http://www.labour.gc.ca/eng/standards_equity/st/pubs_st/unjust.shtml