How Do You Prove Wrongful Dismissal?
Wrongful dismissal involves an employer terminating an employee without just compensation, or a termination in reprisal against by employer. In case of wrongful dismissal you can claim: 1. wrongful dismissal, or 2. ESA Notice plus severance if certain conditions are met. Notice is not required for termination for cause.
What Do I Need to Do to Prove Wrongful Dismissal
In Ontario, you are not required to prove that you have suffered financial damage from the termination, or that you have been terminated without notice. Once you file the claim, the employer has to prove that either 1) that you have been provided with sufficient working notice or payment in lieu of notice; or 2) you have been terminated for cause due to wilful misconduct during the employment.
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Do note that constructive dismissal is a similar yet completely different concept. Employment Law Constructive Dismissal happens when an employer, by words or conduct, unilaterally makes a fundamental change to a material term or condition of an employment contract.
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Do note that Wrongful Dismissal is completely different than Unjust Dismissal. Unjust Dismissal is only available to federally regulated employees.
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Click here to for a more in detail discussion about wrongful dismissal, or Click here to read more about severance pay. Click here to learn more about termination for cause. Click here to learn more about constructive dismissal. Click here to learn more about unjust dismissal.
Can I Claim Wrongful Dismissal If My Employer Lied about Why I was terminated?
There’s a common misconception that employers have to give the employee the exact reason behind the termination, well it’s a yes and no answer. No, an employee is not require to give an employee any reason behind the termination, as long as proper working notice or payment in lieu of notice have been given to the employee. So even if the employer lied about the reason behind the termination, there is no claim of wrongful dismissal. However, if the reason given by the employer for the termination was just an excuse and in actuality the termination was a reprisal against by the employer for trying to enforce his or her employment law entitlements, then there is a case of wrongful termination.
Claiming Wrongful Dismissal during Probation, Can I?
There’s yet another common misconception that I CANNOT claim wrongful dismissal during probation, can I?! Wrong again! Probationary status enables an employee to be terminated without notice only if the employer made a good faith determination that the employee was unsuitable for permanent employment, and provided that the employee had been given a fair and reasonable opportunity to demonstrate his or her suitability, and that the “non-suitability was not just an excuse to be “cheap” and to “save some cost”. The penalty for a bad faith termination during probation was the probation term being void and the employee be entitled to common law reasonable notice if the employment contract is silent on termination without cause, or that the termination clause in the employment contract was deemed to be invalid for violating the Employment Standards Act (ESA).
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