Toronto wrongful dismissal lawyers

We, at Gilbertson Davis LLP, who practice employment law, can advise and represent employers and employees at all stages of the engagement – during the hiring process, including providing advice about the terms of the employment contract, during employment, and on and after the termination of the employment, including advice about the obligations which continue following the termination of employment.

Wrongful Dismissal

In Ontario, employers are generally permitted to terminate employees during any time of their employment, subject to the requirement to provide “reasonable notice” pursuant to the Employment Standards Act or at common law.

The notable exception to this general principle is for employees that work in “Federal Work or Undertakings” (i.e. work in the Federal Government or for companies and agencies that are controlled by the Federal Government).

Constructive Dismissal

Constructive dismissal occurs when an employer’s conduct evinces an intention to no longer be bound by the employment contract. Courts have taken a flexible approach to determining constructive dismissal. The Supreme Court of Canada recognized that constructive dismissal may arise with reference to a specific term of the contract or more generally:

Specific Term Constructive Dismissal: The employer breaches an express or implied term, and the breach was sufficiently serious to constitute constructive dismissal. Such breaches typically involve changes to the employee’s compensation, work assignments or place of work that are both unilateral and substantial.

General Constructive Dismissal: The employer’s conduct generally shows that the employer intended not to be bound by the contract. For example, where an employer’s treatment of the employee made continued employment intolerable, courts have found the employee to have been constructively dismissed. This approach is necessarily retrospective. Although the Supreme Court of Canada has stated that the cumulative effect of past acts by the employer will be considered, the Ontario Court of Appeal has clarified that a single act may constitute constructive dismissal.

Some courts have found an employee to have been constructively dismissed by recognizing a general duty to be an implied term of the employment agreement. For example, Courts have recognized a general implied term to treat the employee with civility, decency, respect and dignity or that the work atmosphere be conductive to the well-being of its employees.

Reinstatement

Generally, an employee will not be reinstated into their previous employment. There are limited circumstances in which an employer can be ordered to reinstate an employee. This may include but are not limited to: being terminated after requesting, taking, or returning from parental leave, being terminated after inquiring into their rights under the Employment Standards Act, Human Rights Code, Occupational Health and Safety Act, Accessibility for Ontarians with Disabilities Act, or any other applicable statute; being terminated after requesting that their employer comply with the applicable law or regulations; being terminated after making a claim under the Employment Standards Act against their employer; and being terminated after assisting regulatory officials investigating their employer.

Termination or Cause

Termination for cause is warranted if an employee has been guilty of serious misconduct, habitual neglect of duty, incompetence, or conduct incompatible with his duties, or prejudicial to the employer’s business, or if he has been guilty of willful disobedience to the employer’s orders in a matter of substance, the law recognizes the employer’s right summarily to dismiss the delinquent employee.

Some common grounds for dismissal include: dishonesty. fraud, theft, breach of trust or deception, workplace harassment and violence, insubordination and insolence, absenteeism and lateness,

After determining the nature and extent of the misconduct, courts will analyze grounds of a dismissal for cause contextually and consider the surrounding circumstances before deciding whether dismissal was warranted. The misconduct must be incompatible with the fundamental terms of, and sufficiently serious that it strikes at the heart of, the employment relationship.

What is “Reasonable Notice”?

Determining the appropriate amount of notice entitled by an employee will depend on several factors, including: character of the employment, length of service, the age of employee; and the availability of similar employment, having regard to the experience, training, and qualification of an employee.

Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily there is no one “right” figure for reasonable notice. Instead, most cases yield a range of reasonableness.

Difference between “Reasonable Notice” and “Severance Pay”

Severance Pay is compensation that is provided to a qualified employee who has their employment “severed”. This form of compensation is intended to compensate an employee for losses (such as loss of seniority) that occurs when an employee is terminated.

An employee is entitled to severance pay when the employee has: worked for the employer for five or more years; and their employer has either (1) payroll in Ontario of at least $2.5 million or (2) severed the employment of 50 or more employees in a six-month period because all or part of the business permanently closed.

When Severance Occurs

An employee is “severed” when their employer: terminates the employee, including in circumstances involving the bankruptcy or insolvency of their employer; constructively dismisses the employee and the employee resigns in response within a reasonable time; lays off the employee for 35 or more weeks in a period of 52 consecutive weeks; lays off an employee because the department or sector in which they are employed has permanently closed; or provides the employee with a notice of termination and the employee resigns after providing the employer with two weeks’ written notice, and the resignation takes effect during the statutory notice period.

Examples of Issues Concerning Dismissal

The following is a list of some of the issues and disputes that the courts and tribunals in Ontario regularly deal with concerning dismissal:

• Change of Terms by Conduct
• Mitigation and Seeking Alternative Employment
• Reputational Damage
• Condonation of Conduct
• Outsourcing
• Restrictive Covenants
• Constructive Dismissal
• Redundancy
• Severance Packages
• Dismissal for Cause
• Reasonable Notice Period
• Termination Without Cause
• Wrongful Dismissal
• Lay off
• Relocation and Changes in Employment Terms

Additional Damages

The requirements under the Employment Standards Act with respect to notice, payment in lieu of notice, and severance, are the minimum requirements. Some employees may have additional rights under common law, or other statutes, such as the Human Rights Code, that provide for elevated damages.

How Can We Help

On dismissal, termination, lay off or redundancy, both employees and employers will need advice as to whether or not the actions of the employer comprise wrongful dismissal or dismissal for cause, and the consequent legal obligations. We can advise and represent you during this process. We can provide efficient, cost-effective advice and representation during the termination process, including determining the nature of the relationship, whether or not the termination or dismissal is for cause, and the reasonable notice period and severance package, if any.

Please contact Gilbertson Davis LLP to arrange an initial consultation.