What is a wrongful dismissal under Canadian law?
If you’re an employee, rest assured: in most cases your employer is automatically prevented from terminating you (or fundamentally changing your conditions of work) without giving you reasonable notice first. If they don’t, something called pay in lieu of notice is normally required. Read on…
The point of this law is to give people time to find new work before being pushed out of their old job, or to provide ‘pay in lieu’ if no notice is given. But how much time, or reasonable notice, is an employee entitled to? The answer depends on factors like age, seniority, level of responsibility and the availability of similar jobs. Each case is different.
So whether you’re an employer or an employee, consider getting legal advice about what ‘reasonable notice’ means in the circumstances, as well as your other rights and obligations. If no notice is provided – or not enough – the employment ‘contract’ has probably been wrongfully broken and pay in lieu of notice may be required. A lot of employers now simply provide pay (instead of notice) but this is where the name ‘wrongful dismissal’ comes from. The key is getting the period of notice ‘right’.
The conclusion is: get advice even if you’re unsure about your status! Why? For many readers, Ontario’s Employment Standards Act will apply – but this legislation only sets out employees’ minimum entitlements, whereas judge-made law (common law) will typically entitle employees to longer periods of notice (or more pay in lieu of notice) – especially if employees search diligently but cannot find similar work.