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What makes a dismissal wrongful in Ontario?

Losing a job is an upsetting experience. Employees might feel angry and confused, and many people feel like their dismissal was wrongful and unfair.

While it can certainly feel this way, not every surprising or upsetting dismissal is wrongful in the legal sense. Employers and employees alike should understand what makes a termination wrongful and what courses of action employees may take to remedy the situation.

Elements of wrongful dismissal

The main component of a proper employee dismissal is proper notice or termination pay. If a person has been an employee continuously for at least three months, employers must provide:

  • Notice in proportion to the length of employment, or
  • Termination (or severance) pay

Employers can choose to provide one or a combination of these upon the dismissal of an employee.

In terms of notice, employers must provide it in writing. The amount of notice depends on the amount of time the employee was employed.

For instance, someone employed for between one and three years must receive two weeks' notice; someone employed for between six and seven years would require six weeks' notice; any person employed for at least eight years would require eight weeks' notice.

The written notice period is crucial for other reasons, as well. If companies do not provide proper written notice, they must make lump-sum payments equal to the amount the person would have earned during that written notice period. This is termination pay.

Parties that do not receive notice or pay may have grounds to pursue a wrongful dismissal claim.

Special circumstances and exceptions

Several situations can arise in which these rules would not apply in the same way. For instance, if a person wilfully engaged in misconduct on the job. And if the employee was hired for a specific period, notice and termination pay may not be required.

One other important note is that employers do not need to give a reason for terminating someone. However, they cannot legally dismiss employees for exercising their rights under the Employment Standards Act (ESA), even if an employer is willing to provide notice or pay.

On the surface, these rules and exceptions can seem straightforward. However, misinterpreting your obligations as an employer or your rights as an employee can be a costly misstep. As such, you can discuss specific situations with a lawyer to avoid regrettable errors.

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