Wrongful Dismissal and the Courts

Wrongful dismissal is the legal term used to describe those circumstances in which an employee has been dismissed without cause and without being given a reasonable period of notice prior to the dismissal or pay in lieu of that period of notice.

As earlier mentioned, employment is primarily a contractual relationship. If an employee has a contract of employment that provides for more benefits than the minimums set out in the Employment Standards Act, then that employee may enforce the contract in court. So, for example, if an employment contract states that the employee will be given six months pay in lieu of notice in the event that the employee is dismissed without cause, then that is the employee's entitlement.

When there is no specific provision in a contract of employment regarding dismissal (or where there is no written contract), then the normal presumption is that there is an implied agreement that the employee will not be dismissed without cause except after being provided a reasonable period of notice or pay in lieu of that reasonable period of notice.

In those circumstances, there are often disputes between employees and employers about whether or not there was cause for dismissal and, if there was no cause, what would constitute a reasonable period of notice. If the parties cannot agree on these issues, then the case may end up in court for decision. In determining what a reasonable period of notice would be in each case, the courts examine a number of factors. They look at the length of service for the employee, the level of responsibility in the employee's job, the age of the employee, and the availability of similar work in the area. The employer's behaviour may also be a factor in the determination of the length of the reasonable notice period. If, for example, the employer contends that it has cause to dismiss the employee and it is then unable to prove such cause, that could result in a determination that a longer period of notice is required.

While there is no specific chart outlining how much notice will be required in any given case, employees have often been successful in winning one month of notice time for each full year worked for the employer to a rough upper limit of two years notice (or pay in lieu of). That amount could be more or less than one month per year of service, depending on other circumstances.