Bildfell Law
Womane who was wrongfully fired

Wrongful Dismissal

The term wrongful dismissal encompasses any situation in which a person is terminated from his or her employment without just cause, and without being appropriately remunerated.

An employer is not generally obligated to keep any person employed. However, where there is no legal basis for terminating the employment relationship, the employer must provide the employee with either a) sufficient notice at law of the termination, or b) pay/salary in lieu of that amount of notice.

What Constitutes Sufficient Notice or Pay in Lieu of Notice?
Where a person’s employment contract stipulates that severance pay will be calculated in accordance with the Employment Standards Act in most cases, the employee is only entitled to one week’s pay per year of service, to a maximum of 8 weeks. In other words, the minimum severance pay allowable by law.

However, where an employment contract is silent with respect to severance pay, common law permits the employee to maintain a claim for an amount greater than allowed under the Employment Standards Act. The amount that may be awarded by the court as common law damages will be dependent upon a number of factors that include:
  • the person’s age
  • availability of similar work
  • seniority level/level of remuneration
  • length of service

Where an employment contract stipulates a formula to be followed in determining severance pay, provided that it does not violate the minimums stipulated by the Employment Standards Act (the “ESA”), the contract will prevail. Whether the wording of the contract complies with the ESA can also become a complex question at law.

Civil Lawsuits
Where a resolution cannot be reached regarding the amount of severance pay or notice period, an action may be commenced in the Ontario Superior Court of Justice. Further, if an employee is terminated in a cruel or humiliating fashion, the employee may seek further compensation, known as “Wallace Damages,” as part of a civil action.

Where an employee’s length of service is short or the employer earns a modest salary, Small Claims Court is often the appropriate forum to commence a lawsuit. Small Claims Court handles claims up to $25,000. One advantage of Small Claims Court is that a settlement conference is held before a deputy judge at an early stage. Where the matter is not complex, the parties may be able to reach an acceptable settlement early on.

It is important to note that The Ministry of Labour has the ability to enforce statutory rights to compensation that is permitted pursuant to the provisions of the Employment Standards Act. You may not however, maintain a claim under the employment standards act as well as a claim for civil relief in the courts.

Unjust Dismissal and Human Rights Code Violations
There are some situations in which mere severance pay is an insufficient remedy for termination without cause. Where an employee has been terminated for reasons that violate the Human Rights Code, it is often referred to as “unjust dismissal”, and the employee may seek further remedy by filing a complaint with the Human Rights Tribunal of Ontario.

The employee’s rights will have been violated if the employer’s reason for terminating the employee is discriminatory against the person’s gender, ethnicity, religion, sexual orientation, or other grounds listed in the Human Rights Code.

If you feel that you are a victim of wrongful dismissal in Sarnia or Petrolia or you are an employer seeking to terminate an employee legally, contact us for employment lawyer at Bildfell Law. We can help you at 519-339-0440.