Wrongful Dismissal Claims
No matter how an employer chooses to justify a termination, they have to respect the rights of their employees as laid out under applicable legislation, the contract of employment, and the common law.
Employers have the right to terminate the employment of a non-union employee at any time on a without cause basis. Although there is no job protection, if the employer intends to terminate the employment relationship, it has a duty to provide the employee with adequate notice of the termination or pay in lieu, which is also commonly referred to as a “severance package”.
Most wrongful dismissal cases fall into one of two categories:
- The employer fails to provide reasonable notice or the appropriate payment in lieu; or
- The employer improperly asserts “just cause” for dismissal, based on false, arbitrary or exaggerated accusations of misconduct or poor performance.
Many employees may also have concerns about fairness and transparency related to a termination. For instance, if the employer acted in bad faith, or if there were discriminatory reasons for the termination, an employee may be entitled to additional compensation, as well as the wrongful dismissal damages.
A constructive dismissal occurs when the employer makes unilateral changes to fundamental terms and conditions of employment, causing the employee to involuntarily resign from their employment. Because the employer has not formally dismissed the employee, this type of situation differs from a wrongful dismissal case.
Not every change to the employment relationship will give rise to a constructive dismissal, as employers are entitled to make changes to an employment relationship for a variety of reasons. However, a constructive dismissal may be said to occur if the employee has been subjected to a toxic or hostile work environment. If an employee is sexually harassed, bullied or the victim of other forms of bad faith conduct such that it would be unbearable to continue working in that environment, it can be argued that they are being constructively dismissed.