Suing for Wrongful Dismissal in Ontarioteam
Although there is a lot of information available on wrongful dismissals, many sources are not current or fail to flag important factors that impact an employee’s entitlements. For instance, a case for wrongful dismissal is impacted by factors such as whether the employee is federal or provincial, unionized, has an employment contract, was terminated for unlawful reasons, among others. This articles goes over common questions regarding wrongful dismissals in Ontario for non-unionized employees.
What is Wrongful Dismissal?
Wrongful dismissal is when an employee is terminated from their job and not provided with appropriate notice of termination or pay in lieu of such notice.
The “appropriate” amount of notice depends on a variety of factors including the existence and enforceability of an employment contract, whether you are entitled to severance pay, and whether you were terminated with or without cause.
Ultimately, a wrongful dismissal is a breach of the terms of the employment.
Although employers have the right to terminate employees without cause for any (lawful) reason, if the employer fails to provide the employee with their legal entitlements upon termination, then s/he has been wrongfully dismissed.
Where an employee is terminated for cause, s/he is not entitled to notice, pay in lieu of notice, or severance pay (if applicable). However, the bar to justify a termination for cause is extremely high. As such, if you have been terminated for cause but do not believe the level of misconduct justifies a termination, you may have been wrongfully dismissed.
When Can I Sue for a Wrongful Dismissal?
If you are terminated from your position without cause and you did not receive an appropriate amount of pay, you may start a legal claim for wrongful dismissal in Ontario asking for amounts that you are entitled. In Ontario, you may bring a wrongful dismissal action to Small Claims Court or Superior Court, depending on the monetary amount you are seeking. Depending on the particulars of your case, you may choose to bring an application to an administrative tribunal such as the Human Rights Tribunal of Ontario.
We recommend seeking advice from an employment lawyer immediately after being dismissed from your employment. Do not sign any termination papers, full and final release, severance package, or offers without seeking independent legal advice. Otherwise, you may limit your ability to sue your employer for wrongful dismissal.
Remember, you may also sue for wrongful dismissal in Ontario where you were terminated with cause inappropriately. As such, we recommend that you have a lawyer review your case as soon as possible. A lawyer will be able to explore if there are unlawful reasons connected to your dismissal, whether the standard of cause is met, as well as advise you on the impact of actions you take next.
What Types of Damages Are Available for a Wrongful Dismissal Claim?
There are different types of damages a wrongfully dismissed employee can claim and their availability and amount depend on the facts of the case and the forum to which the case is brought.
- Damages for Wrongful Dismissal: This refers to the amount of compensation the employee should have earned during the reasonable notice period. Depending how the employee is compensated, damages for wrongful dismissal may include commission, salary, termination pay, bonuses, and amounts to compensate for loss of benefits.
- Special Damages: This is a broad category that can include many types of damages, for example, aggravated damages may be awarded for mental distress or harm caused by the employer’s reprehensible conduct, such as through a bad faith manner of dismissal. In rare cases, courts may award punitive damages, whose purpose is to punish or deter the employer from engaging in similar behaviour. Punitive damages are awarded in circumstances where the court finds the conduct to be harsh, vindictive, reprehensible and malicious or high handed.
There are also many other types of damages that may apply, depending on the circumstances. For instance, employees may also seek damages for other tortious conduct, and human rights damages for cases involving discrimination.
How Does an Employment Contract Affect My Wrongful Dismissal Case?
Employment contracts often contain provisions attempting to limit what an employee is entitled to upon termination. Normally, employment agreements contain terms called “termination clauses” that attempt to limit an employee’s entitlements to the minimums prescribed by the Employment Standards Act (ESA).
Notably, recent developments in the law have found significant flaws in most termination clauses. Where a termination clause is found to be invalid, an employee will no longer be restricted to the minimums in the ESA, and instead be entitled to reasonable notice upon termination, which is often a significantly larger amount.
If you are an employer facing a wrongful dismissal claim against you, or an employee who believes you have been wrongfully dismissed in Ontario, our team of experienced wrongful dismissal lawyers at Achkar Law can help. Contact us by phone toll-free at +1 (800) 771-7882 or email us at [email protected] and we would be happy to assist.
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