What Is Wrongful Dismissal
Do you know what your legal rights would be if you walked into work one morning and were told that you were fired? The answer depends on a number of factors but, generally speaking, you cannot force your employer to take you back.
If you are an unionized employee, your union may decide to take up your case and attempt to get your job back by using the grievance and arbitration clauses in the collective agreement. If you are not unionized, you cannot force your employer to give you back your job.
Fortunately in recent years, our law has allowed non-unionized employees the right to sue for the financial and emotional devastation caused when the dismissal was improper. Our law now recognizes that an employee has a right to reasonable notice of dismissal unless there is just cause for immediate termination.
When deciding whether or not a persons conduct amounts to just cause, our courts look at all of the circumstances of each particular case. So, unless you were fired for just cause our law says you are entitled to a reasonable period of notice or pay in lieu of the notice. The Employment Standards Act of Ontario sets out minimum standards of notice.
The amount of notice an employee is entitled to will be determined by considering, among other things: The character of the employment; the degree of responsibility; the length of service; the age of the employee; the experience, training and qualifications of the employee; and the availability of comparable employment.
If a Judge decides that a person was dismissed without just cause and without adequate notice, the above factors, among others, will be considered in order to determine the appropriate length of notice. The employer may then be ordered to pay the amount of pay which would have been earned during such a time period. The value of benefits to which the employee normally was entitled will be added to the damages received. However, the person who was fired must take reasonable steps to secure other comparable employment or risk having the damages reduced.
If the firing was carried out in such a callous manner as to cause emotional distress, the award may be increased to provide the dismissed employee with full and complete compensation.