Trial Counsel for Law Firms

Wrongful Dismissal Overview

Below is an overview of some basic and key issues in employment law and wrongful dismissals.

 

Union vs. Non-Union

Union employee rights depend on the collective agreement. Union employees are obliged to deal with their union when terminated and will likely need to file a grievance within a short timeframe.

Non-union employees can resort to private legal counsel and the Courts. The balance of this overview will focus on non-union employees.

 

End of Employment

Employers may terminate employees at any time so long as the employer provides working notice (the employee must continue working) or pay in lieu of working notice (the employee is paid, but does not go to work) or a combination.

Employees who quit usually get nothing, unless constructively dismissed (employer breaches the employment contract and employee is justified in resigning). Asserting a constructive dismissal is complicated.

 

Without Cause vs. With Cause

Terminations without cause mean the employee did nothing wrong and the employee receives termination entitlements. Termination with/for cause (aka just cause) means the employee did something wrong and they get nothing.  It is difficult for an employer to establish a with cause termination; most are without cause.

 

Termination Entitlements

Upon termination without cause, entitlements depend on the Employment Standards Act (ESA) or Canada Labour Code (CLC) as a minimum, other statutes such as human rights legislation, the employment contract and the common law (Judge made law). If there is no written employment contract, the contract is verbal. Common law entitlements can be much more than ESA / CLC minimums.  Role, length of service, age and availability of other employment are common law considerations.

 

Employment Insurance (EI) and Income Taxes

Employees have an obligation to repay EI during the notice period if income is recovered through a settlement or judgment. Employers may need to deduct income taxes from any settlement or judgment.  EI and income taxes can therefore be important considerations in structuring a settlement.

 

Mitigation

Employees who are terminated have a duty to mitigate their losses by looking for a new job. Failure to look for a new job usually reduces termination entitlements. Finding a new job may mean the end of termination entitlements.

Employees need to keep a detailed journal of their efforts to find a new job, including the following details and supporting documents:

hassell-trial-counsel-wrongful-dismissal-mitigation-table

 

Wrongful Dismissal Trials

For some thoughts on employment law trials, please click here.

For an overview of our wrongful dismissal services, please click here.

 

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Toronto, Ontario M6G 3P8


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