Assignment 5 - Wrongful Dismissal

Wrongful dismissal: What you should know?
Wrongful dismissal is a common issue in the workplace that can lead to a

stressful and devastating situation. It is a serious matter that requires
immediate legal attention.
You might feel like you have lost everything—your job, your company, and
even your identity. But there is no need to despair. If you are an employee
who has been fired unfairly, it is important that you seek legal help as soon as
possible to protect your right against your employer.
If you believe that you have been wrongfully dismissed from your job, there
are steps that you can take to ensure that your right is protected.
In this article, we will guide you in protecting your rights against wrongful
dismissal by discussing what wrongful dismissal is and the steps to take
should you wish to pursue a claim against the employer.
What is wrongful dismissal?
A wrongful dismissal occurs when an employer either:
(i) Terminates an employee without cause but fails to provide the
employee with sufficient notice of dismissal; or
(ii) (ii) terminates an employee for cause without providing any
notice of dismissal in circumstances when the employer did not
have just cause to dismiss the employee.
The terms “wrongful” and “unjust” are often used synonymously.
In employment law, a wrongful dismissal allows the employee to claim
severance pay (compensation for being fired) while an unjust
dismissal allows employee to seek reinstatement on top of a severance
package.
While the term “wrongful dismissal” is often misunderstood, the Superior
Court of Justice clarified in the case of Joss Covenoho v Pendylum Inc that not
all dismissals are to be considered unlawful. In fact, both the employee and
employer have the right to terminate the employment relationship for any
lawful reason as long as the other is provided with sufficient notice.
What is a Notice?
The employer who dismisses an employee without just cause is required to
provide the employee with reasonable notice of the termination of their
employment. There are two methods to determine the employer’s potential
liability for reasonable notice:

1. Determine the period of reasonable notice.
2. Calculate the employee’s damages based upon the reasonable notice
period.
In the case of Bardal v Globe & Mail Ltd., the factors in determining a
reasonable notice were provided are as follows:
 The age of the employee

 The length of service
 The character of the employment
 The availability of similar employment
If the court determines that an employee has been wrongfully dismissed,

employee will be awarded with damages for the employer’s failure to provide
reasonable notice of dismissal.
Who can file a claim?
The Employment Standard Act provides that an employee may be entitled to
the protection from wrongful and unjust dismissal if:
1. The Employee does not hold a managerial position.
2. The Employee has completed at least 12 consecutive months of
continuous employment with the same employer.
3. The Employee is not covered by a collective agreement.
Notably, court decisions have recognized that provisions on wrongful
dismissal provided by the Employment Standard Act as well as the Part III of
the Canada Labour Code are also applicable to "constructive dismissal".
The Canada Labour Code also clarified that the rules on wrongful dismissal
are not applicable in cases where the employees had been dismissed due to
layoff or discontinuance of a job.
What legal steps should you take?
If you have been wrongfully dismissed, you may be able to file for
compensation for lost wages and benefits. You may also be able to recover
damages should the court finds wrongful dismissal.
The Employment Standard Act provided the guidelines in filing a complaint
for wrongful dismissal which are as follows:
1. The employee may request, in writing from the employer, a written
notice or statement stating the reasons for dismissal. The employer is
required to reply within 15 days after the request is made.
2. The employee can file a complaint alleging the unjust dismissal at any
Labour Program office for a period no later than 90 days from the date
of the dismissal.
3. The complaint can be filed by the employee himself or by a

representative, such as a lawyer.
4. The complaint must identify the following details:
4.1 Employee details

4.2 State that the employee was dismissed
4.3 Date of dismissal
4.4 Claim that the dismissal was wrongfully made.
Do you need the help of a Lawyer?
If you feel like you were wrongfully dismissed, it is always best to seek legal
advice. A lawyer who is experienced and specializes in this type of case may
be able to help you win back your job and get compensation for any damages
caused by the wrongful dismissal.
Contact us today! Our team of competent and experienced Lawyers will be
there to assist you.

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Assignment 5 - Wrongful Dismissal

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Wrongful dismissal: What you should know?

Wrongful dismissal is a common issue in the workplace that can lead to a

 The age of the employee

If the court determines that an employee has been wrongfully dismissed,

3. The complaint can be filed by the employee himself or by a

4. The complaint must identify the following details:

4.1 Employee details

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