By David Hughes
For many people, our job is a key part of our identity. It’s what we do for most of our waking lives. Because of that, the impact of losing a job can be devastating, not just financially, but sometimes also to our self-esteem. The courts have recognized this, which means that there can be significant consequences for an employer who gets it wrong when firing somebody. In my practice, I often come across misunderstandings on the part of both employers and employees.
What is “wrongful dismissal” anyway?
The first, is that “wrongful dismissal” doesn’t mean that an employer fired you without a good reason. What makes a dismissal “wrongful” is not providing you with adequate severance pay or enough working notice that your job is going to end. However, sometimes employers don’t know what the right amount is and don’t give you all that you may be entitled to.
The difference between “without cause” and “for just cause”
These are critical words to understand if you are being let go from your job. “Without cause” means that the employer is firing you not because of anything you have done wrong. Unfortunately, in most cases (there are some exceptions) you don’t have a right to keep a job just because you didn’t do anything wrong. What you do have a right to is reasonable notice that your position has been terminated.
However, if an employer is firing you “for just cause” or “for cause” (both mean the same thing) it has to be because of something serious you did wrong, like stealing or committing some other wrongful act. In many cases, like rudeness, lateness etc., an employer should usually have first given you a verbal and then a written warning before firing you for cause. If you are fired for cause, an employer does not have to give you any notice or severance pay. However, sometimes a court will disagree with the employer that it had cause and will order the employer to pay appropriate severance.
How much notice am I entitled to?
Another misunderstanding that many employers and employees have is that employers only have to provide an employee with the amount of notice set out in the Employment Standards Act. This is often not true. Sometimes, the Employment Standards Act doesn’t apply. In some circumstances, a court will find that an employee is entitled to notice under what is called “the common law” which can be up to 24 months for a senior employee who has worked for an organization for a very long time. This can come as quite a shock to an employer to discover that it has to provide 2 years of notice and benefits instead of the 8 weeks it thought!
As always, the information provided here is general information and not legal advice. Individual circumstances differ, most notably if you are part of a union, in which case, completely different rules apply. So, my answer to what you should do if you have been fired (or if you need to fire someone) is “discover your rights”. Many employment lawyers will give you a free initial consultation.
David Hughes practices employment law at Forward Law LLP. He helps both employees and employers understand their rights and options