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How to tell if you have a wrongful dismissal claim

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.

Consider cause

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.

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Criteria and mediation for wrongful dismissal: