Most people think of wrongful dismissal as being terminated without just cause. An employer can actually terminate employee at any time without just cause, as long as they give the employee reasonable notice. The “wrong” in wrongful dismissal is when an employer fails to provide reasonable notice, or pay in lieu of notice. When a wrongful dismissal case is brought before the courts, the employee is not making a case to retain their job. They are making a case to receive the financial compensation that their former employer is legally required to pay to them.
Notice of Termination
The amount of notice required for a termination is based on how many years an employee has been actively employed by their employer. The chart below, from the Ontario Ministry of Labour’s website, outlines the notice required based on the period of employment.
|Period of Employment||Notice Required|
|Less than 1 year||1 week|
|1 year but less than 3 years||2 weeks|
|3 years but less than 4 years||3 weeks|
|4 years but less than 5 years||4 weeks|
|5 years but less than 6 years||5 weeks|
|6 years but less than 7 years||6 weeks|
|7 years but less than 8 years||7 weeks|
|8 years or more||8 weeks|
The Ontario Employment Standards Act, Section 61(1) allows for termination pay by the employer, in lieu of notice. Termination pay must be paid in a single payment and must be equivalent to the normal wages for a normal work week that an employee would have received during the notice of termination period. Vacation pay is earned on termination pay. Employers must also continue to contribute to all benefits programs on behalf of the employee, if these exist, so they are available to the employee during the required notice period.
61 (1) An employer may terminate the employment of an employee without notice or with less notice than is required under section 57 or 58 if the employer,
(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive.
Sometimes a termination clause will be written in to an employee’s contract. This type of clause states that in the event of termination, the employer is not required to give the usual amount of notification required. If these clauses are not properly written and executed, the court will often favour on the side of the employee and consider it a case of wrongful dismissal.
Are you a victim of wrongful dismissal?
If you have been terminated without appropriate notice or pay, you may be victim of wrongful dismissal. It is in your best interest to speak with a wrongful dismissal lawyer to ensure you receive the money you are legally entitled to.
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