Kevn Smith

Wrongful Dismissal Law in Canada

In wrongful dismissal cases, the wrong suffered by the employee is the breach by the employer of the implied contract term to give reasonable notice before terminating the contract of employment. Damages are awarded to place the employee in the same position as he/she would have been had reasonable notice been given

"In wrongful dismissal cases, the wrong suffered by the employee is the breach by the employer of the implied contract term to give reasonable notice before terminating the contract of employment. Damages are awarded to place the employee in the same position as he/she would have been had reasonable notice been given."

The first definition of Wrongful Dismissal

Wrongful dismissal is a situation when an employee is fired without the so called "reasonable notice". Basically the employer terminates the employment contract of the employee and the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. The scope for wrongful dismissal varies depending on the terms of the employment contract and jurisdiction. The absence of a written formal contract doesn’t preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship.

A dismissal is considered wrongful if an employee is fired or the employment contract is changed without warning. Also there is a constructive dismissal when employer changes the employment contract without noticing the employee. Usually such changes can be made to most serious parts like as wages or salary.  After the contract is changed the employee is forced to accept it or quit. In this case the employer can be suited.

The employer must dismiss an employee according to rules set in the contract, it doesn’t matter if the contract is in written or in oral form, or it is a combination of oral and written form. In Canadian law there are two types of dismissal - dismissals with cause and dismissals without cause. Cause can be defined as behavior or actions of an employee that breach the fundamental principles of the employment contract. If a cause exists the employer can fire the employee without providing any notice, if there is no cause the dismissal is considered to be a wrongful dismissal and can have bad consequences for the employer. A wrongful dismissal allows an employee to claim monetary damages for the wages, commissions, bonuses, profit sharing and other such emoluments the employee would have earned or received during the lawful notice period, minus earnings from new employment obtained during the lawful notice period.

There are two main options available to an employee who was wrongfully dismissed. He or she can file an employment standards claim, it is simple and cheap but the maximum amount that can be obtained from such claim is $10,000. The second option, with no limitations on compensation, is to commence a civil action against their employer. Nevertheless this option is expensive, time consuming and lengthy, because it will go a standard case process, still a mediation of some other form of alternative dispute resolution is always possible. There is also a possibility to for an employee to receive the work back in some cases.  It is very important to seek legal advice before starting any claims, so if you are completely sure that the dismissal was wrongful find an experienced labor lawyer.

Article Tags: Wrongful Dismissal, Employment Contract

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