What is a wrongful dismissal?

There are generally two categories of wrongful dismissal:

The first category involves a situation when the employer terminates without cause and the employee is given some notice or payment in lieu of notice in the form of a severance package, but the amount of notice or severance, is inadequate from a legal perspective.

In assessing the employee’s legal entitlement to notice or payment in lieu, this entails a contextual analysis, including an assessment of the employee’s contract.

Did the employee sign a written contract or letter of offer? Does that contract or offer letter contain a termination clause? If so, what does that clause stipulate that the employee gets upon termination and is it an enforceable clause?

Other considerations include the age of the employee. This is important because the courts generally recognize that older employees may have a tougher time or longer job search period compared to their younger and cheaper counterparts.

The character of employment is also relevant. The severance entitlement will vary depending on the employee’s occupation and pay grade. Is this an executive level position, managerial, or low skilled job?

Most importantly, what is the employee’s length of service? Longer tenure employees will generally be entitled to a higher severance entitlement.

The second category of wrongful dismissals occurs when the employer asserts “just cause” for dismissal, even though no just cause exists. In other words, the employer has falsely accused the employee of serious wrongdoing or neglect of duty, or otherwise has exaggerated the severity of the situation.

This is a more serious form of wrongful dismissal because when the employer asserts ‘just cause’ for dismissal, in most cases they are either providing no severance at all, or offering a very deficient amount of severance. This can have severe financial and reputational impact to an employee, so when an employer falsely asserts cause, we as employment lawyers take this very seriously. In a situation when the employer acts in bad faith by falsely asserting cause, the employee may also be entitled to other forms of damages, including bad faith damages, aggravated damages, in addition to wrongful dismissal damages.