Wrongful Dismissal

Your employer tells you that you have been dismissed without cause. Can your employer legally do that? What are your options?

Most employees do not have a right to continued employment. You may be dismissed without cause, provided that you are given the appropriate payment in lieu of notice or reasonable working notice of termination.

Often times, upon dismissal, you are presented with a termination package that consists of a sum of money that may be paid either as a lump-sum payment or as a continuation of your salary for a period of time. In exchange, you must sign a “Full and Final Release”, which means that you agree to take the package and to not sue your former employer as it pertains to your termination.

How much payment in lieu of notice are you entitled to?

In wrongful dismissal litigation, often the fight is about how much money, if any, the employee is owed upon termination.

It is important to first revisit your employment contract, if any.  If there is an enforceable termination clause in your contract, you may only be entitled to the minimum notice period as outlined in the Employment Standards Act (“ESA”). Employers are not allowed to contract out of these minimum entitlements, which must be paid, regardless of the terms of your contract.

Termination clauses, however, are often not enforceable for a range of reasons (e.g. the clause violates the ESA). Therefore, you may be entitled to common law (judge made law) notice entitlements, which can be upwards of 24 months.

Calculating and determining what constitutes reasonable notice is more of an art than a science. The case law has provided a number of factors that must be considered, including your age, position, duration of employment, compensation and whether you will be able to obtain similar employment given the current market.

If you have been terminated, contact Pinto Shekib LLP to discuss your options. We offer a free initial consultation, and we charge a fixed fee for termination package reviews.

Disclaimer: the foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances, please contact Pinto Shekib LLP.

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