Wrongful Dismissal

Most employees can be fired any time.  They can be fired “for cause”, or “without cause”.  If you’re fired for cause, the employer doesn’t have to give any notice or severance pay.  Cause has to be serious: stealing, disobedience, repeated failure to perform (including being late for work) are the most common “causes”.

If you’re fired without cause, you’re entitled to either working notice or severance pay in place of the notice.  The length of notice (or severance in lieu) is based on 4 main criteria: (1) Character of the employment; (2) Length of employment; (3) Age of the employee; and (4) Availability to similar employment suitable to the employee.  Simply: you are entitled to a reasonable amount of notice to find a similar position.  If you are employed in a position of special status or trust, you get extra notice – sort of as a matter of respect.

Your right to severance pay is not limited to the periods in the Employment Standards Act.  Usually, you are entitled to far more.  And severance pay is collectable from the Directors of a company personally.  It’s a lot of fun to garnish the President’s bank account….

If you don’t find a job in the notice period, that’s your problem.  You don’t get to extend the notice.  However, if your boss pays severance in lieu of notice and boots you out, and you find work in less time than the severance pay covers – you keep the extra.

Many employers try to force fired employees to agree to pay back any severance if they find work sooner than the severance period.  They have no right to do so, but many employees are forced into such deals because they can’t afford to sue over the severance pay – they need a paycheque each month.

Our experience is that most employers lose wrongful dismissal lawsuits.  That’s because they fire for no reason, then try to cheat on the severance.  Or they may have a reason, but there is no documentation of the employee’s infraction.  Or, worse, they fire for the “wrong” reason.  Like: firing “brown” staff following 9/11 (yup, it happened).  Like: firing the best salesman because the boss wants to hire his own son (yup).  Like: firing a waitress because she refused sexual advances (so many cases…).  In cases like that, the employee is entitled to severance pay and punitive damages.  The employee may also be entitled to damages awarded by the Human Rights Tribunal.

Even worse, some employers decide to humiliate the employee during firing.  Like: physically tearing off the company shirt from an employee in front of other staff (yup).  Like: paying severance in small bills, and throwing them on the floor so the employee has to crawl around picking it up (while the other employees laughed and laughed).  Like: “perp-walking” the employee off the premises in front of other staff and customers (again: yup).  In cases like that, the employee is entitled to punitive damages, sometimes damages for psychological injuries.

Employers are well-advised to talk to a lawyer before they fire someone.  Employees should always refuse to sign a release of their right to sue.  See a lawyer first. 

We’ve been giving advice to employers and employees since 1990.

Getting clear advice before you do something potentially damaging is always a good idea.