You Lost A Non-Union Job?
Did you get
the compensation to which you were entitled by law?
Paul McKeever, B.Sc.(Hons), M.A., LL.B.
following information is a brief and undetailed overview of the
sorts of issues that are involved when a person is wrongfully
dismissed from their job. It is not a legal opinion. It should
not be treated as legal advice. It should not be relied upon
as legal advice or legal opinion. Paul McKeever disclaims
all liability for losses which might be incurred from the use
or abuse of the following information, or from reliance upon
it. Paul McKeever does not warrant, guarantee, or promise
that the following information is accurate or correct. You would
be well advised to retain the services of a lawyer if you believe
that you may have been wrongfully dismissed.
one person hires another person to provide some labour or service,
a contract is typically formed. This is true even if the
contract is neither written-down on paper nor signed. Some contracts
are formed when people
make an oral (i.e., spoken) agreement.
law does not consider all labourers or service providers to be
employees. For example, a person who has his/her own typing business
might not be considered to be an employee if they use their own
equipment, invoice the person requesting the work to be done,
control the way in which they do the requested work, et cetera.
But, where the law considers the relationship between the two
people to be a relationship of employer and employee, the courts
will, under some circumstances, consider the contract of employment
to contain certain terms (i.e., the court will interpret the
contract as if certain terms are implied).
an employment contract contains no valid, express term about
the amount of notice to which the employee is entitled about
the termination date of their employment contract, the courts
will usually state that the contract contains an implied term concerning
notice. The implied term can be summarized as follows:
the employer wishes to terminate the employee's contract, the
employer must provide the employee with reasonable notice of
the termination date of the employee's employment contract."
if an employee resigns, he will have been the person to
have terminated the contract (not the employer) and the employer
will not be required to give the employee notice of any sort.
For this reason, employers have sometimes encouraged, or even
coerced an employee to resign in the hopes that they would
not have to compensate the employee for having failed to give
reasonable notice. For example, to encourage the employee
to resign, the employer might, without the employee's consent,
cut the employee's pay, give him/her an unwarranted demotion,
give the employee relatively stressful, labourious, or demeaning
tasks, or force the employee to work in very uncomfortable working
conditions. To coerce the employee to resign, the employee might
be unjustly accused of unlawful conduct (e.g., stealing, falsifying
information about the amount of time worked), or warned of being
'black-balled' among other potential employers. In response,
the law requires that resignations be voluntary. If an
employee was encouraged or coerced into resigning, he/she often
will be considered, by the courts, not to have resigned (even
if the employee signs a note stating that they are resigning
for one reason or another). Where the employee's resignation
is thereby disregarded by the court, it often decides that the
employee was constructively dismissed. For the purposes
of wrongful dismissal, a person who has been constructively dismissed
has typically been wrongfully dismissed, and is typically entitled
to the same compensation as a person who was expressly dismissed
by his/her employer .
the employer has not had just cause to deny the employee notice,
but the employee has not received a "reasonable" amount of notice
and has not voluntarily resigned, the employer is usually considered
to have wrongfully dismissed the employee (there are,
of course, exceptions to the rule). A person who has been wrongfully
dismissed is usually entitled to be compensated for his/her losses
that resulted from the dismissal. The rationale for implying
a right to reasonable notice is that the employee ought to be
able to continue to work with his/her employer for a reasonable
time so that he/she will still have an income while he/she looks
for another job.
much notice is as reasonable amount of notice? Unfortunately,
it depends upon some or all of a wide variety of things. In
determining how much notice is reasonable notice, a court
is trying (at least
in part) to gauge how long it reasonably would take for the
dismissed employee to find another, similar job. Therefore,
may consider such things as the employee's age, the kind of job or position that the employee lost, the availability of that kind of work, and the duration for which the employee worked for the
employer before being dismissed. Other considerations sometime come into play, such as whether the employee was pregnant when she was dismissed.
if the employer enticed or lured his/her wrongfully dismissed
employee away from another job, the court will take this into
account when determining the appropriate notice period. For example,
suppose that a person was working for employer #1 for 10 years
and was enticed away from that job by employer #2 who promised
job security, great pay and better chances for advancement. Were
employer #2 to wrongfully dismiss the employee after only 1 month
of employment, the court might - in determining what is a reasonable
notice period - treat the employee as if she had worked with
employer #2 for 10 years + 1 month.
There is no mathematical formula that determines how much notice is reasonable notice at common law. Judges, and only judges, decide how much notice is "reasonable" in each case. Different judges could certainly make different decisions concerning how much notice is reasonable for you, though an experienced employment lawyer knows the range of notice periods likely to be given by judges in your case. For these reasons, calculators, tables, or automated/computerized online reasonable notice estimates cannot provide you with correct and reliable advice about how much notice is reasonable in your circumstances (be wary of web sites that give you free, automated - and, usually, inflated - estimates of your notice entitlement: they typically are marketing gimmicks). Your only reliable guide to knowing how much notice you are entitled to is an experienced employment lawyer.
person who has been wrongfully dismissed is entitled to be put
in the same situation, monetarily, that they would have been
in had they not been wrongfully dismissed. Most typically, the
employee's gross losses over the reasonable notice period will
include the wages that he would have received during that period,
plus such things as out-of-pocket expenses for medical or other
services that should have been covered by the employer's benefit
plan (if any), or the cost of relocating to take another job
(e.g., the legal, realty, and moving expenses associated with
the selling of a house and the buying of another in another,
distant locale). However, the law also requires wrongfully dismissed
employees to try and mitigate (minimize) their losses by looking
for similar employment: earnings from such employment during
the notice period will usually be deducted from an employee's
gross losses. Also, failing to try to mitigate one's losses could
result in a reduction to the compensation owed by the former
is important to note that, usually, the
law of wrongful dismissal does not apply to unionized employees.
is also important to contact a lawyer with expertise in the
area of wrongful dismissal before one makes a claim for termination
or severance pay through the Employment Standards branch of
Ontario Ministry of Labour. For example, if an employee makes
a claim for termination or severance pay through the Ministry
but does not retract the claim within 2 weeks of having made
it, the employee may be prevented from suing the employer for
wrongful dismissal. Similarly, a person who sues for wrongful
dismissal cannot also make a claim to the Ministry for termination
pay or severance pay. The choice is important, primarily because
the amount of notice (and, typically, compensation) to which
an employee is entitled can differ drastically depending on the
route one takes (i.e., a claim for termination or severance pay
through the Ministry versus a wrongful dismissal lawsuit in the
courts). For example, the court may decide that a particular
employee was entitled to 24 months of notice, but the Ministry
might be prevented from granting that same employee any more
than 8 weeks notice.
certain time limits apply to the commencement
of a lawsuit against one's former employer for wrongful dismissal. Thus, if you are
considering the possibility of getting the compensation to which
you might be entitled, it is best to see, as soon as possible,
a lawyer who practices in the area of wrongful dismissal.
Experience matters: Paul McKeever has been practising employment law since 1997 and has argued cases successfully in the Superior Court of Justice and the Court of Appeal for Ontario. Do you live in or near the Greater Toronto Area (GTA) in Ontario, Canada? If
so, and if you think that you might have been wrongfully dismissed, call Paul
McKeever. Paul McKeever can help you to determine whether or not you are entitled to compensation
from your former employer.