Wrongful Dismissal Ultimate Guide
What is Wrongful Dismissal?
Read Time: 25 - 30 mins
This is the ultimate guide to Wrongful Dismissal and a complete guide regarding suing for wrongful termination.
If you're dealing with losing your job, it can be puzzling in figuring out what to do next. If you think you may have been unfairly let go, you might be considering suing for wrongful termination, or wrongful dismissal. If you're thinking about doing this, you need to understand the language that was used when you were fired.
For an employer, a mishandled wrongful dismissal claim will cost you dearly. For an employee, in a wrongful dismissal case, you want to retain an experienced wrongful dismissal lawyer to maximize your recovery against an unfair termination.
As an employer or an employee, it makes sense to consult with wrongful dismissal lawyers from time to time especially if you live in the Toronto area. Wrongful dismissal Lawyer a phone call away! FREE Initial Consultation. No-Win-No-Fee for wrongful dismissal cases.
Click here to check out the constructive dismissal ultimate guide - a dismissal claim for those who are forced to resign due to employer's contractual repudiation.
Questions to Ask a Wrongful Dismissal Lawyer:
1 - What is Wrongful Dismissal?
A wrongful dismissal occurs when an employee is dismissed, or terminated, by their employer, WITHOUT just compensation. In General, there are two types of wrongful dismissal claims:
- Termination Without Cause: Terminates employment without cause yet refuses to compensate the employee adequately.
- Termination for Cause: Inappropriately dismisses an employee for cause and fails to pay any compensation.
Constructive dismissal is a similar yet completely different concept. 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. Click here to learn more about Constructive Dismissal.
Unjust Dismissal is completely different than Wrongful Dismissal. Unjust Dismissal is ONLY available to federally regulated employees under Division XIV - Unjust Dismissal of Part III of the Canada Labour Code.
Click here to learn more about Unjust Dismissal.
How Do You Prove Wrongful Dismissal?
In Ontario, you are NOT REQUIRED to show that the termination caused you financial harm or that you were dismissed without notice. Once you've filed your claim, the employer must show that either 1) you were given enough working notice or a payment in lieu of notice; or 2) you were terminated for cause due to wilful misconduct during the employment.
Can I Sue for Wrongful Dismissal if My Boss Lied to Me About Why I Was Fired?
There is a common misconception that companies MUST give the employees the specific reasons for termination. An employer is not obliged to give a reason for the termination if an employee has received sufficient working notice or payment in lieu of notice.
As a result, even if the employer misinformed the employee about the reason for the termination, there is NO wrongful dismissal claim, assuming sufficient notice or payment in lieu has been given.
However, if the employer's justification for the termination was just an excuse, and the dismissal was actually a reprisal against the employee's efforts to enforce his or her employment law rights, then there is a case of wrongful termination.
Can I Claim Wrongful Dismissal during Probation?
Another common misunderstanding is that a claim of wrongful dismissal CANNOT be filed while on probation.
An employee can be fired WITHOUT NOTICE only if the employer made a good faith determination that the employee was unsuitable for permanent employment, that the employee was 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 "save some COST." See Bhasin v Hrynew, 2014 SCC 71.
If the employment contract is silent on termination without cause, or if the termination clause in the employment contract is deemed invalid for violating the Employment Standards Act (ESA), the penalty for a bad faith termination during probation is that the probational term is voided, and the employee is entitled to common law reasonable notice.
Termination Without Cause vs. Termination for Cause vs. Constructive Dismissal
Approaching a case of termination without cause is different from how we'll approach a case of termination for cause.
There are many reasons behind termination without cause, and it can be hard to apprehend why you've been let go when you haven't done anything wrong.
If you've been a victim of termination without cause, it's highly possible that your former employer violated some of the employment laws regarding letting an employee go.
If you're dealing with termination for cause, it's also possible that your employer didn't actually have the right to fire you in the context of employment law. This type of termination occurs when the employer claims that the employee committed wilful misconduct, or committed an act that was against company policy to the point of frustration of contract.
Things like stealing from the company or committing other illegal acts at the workplace can all be reasons for termination with cause. If you've been fired with cause, you may still have a case for wrongful termination.
Another common type of employment related legal dispute is known as constructive dismissal.
In this type of employment cases, the employer makes the working environment so hostile for the employee that the employee has no choice but to quit. If an employer has been increasingly rude or mean to you at work, has made it impossible for you to excel at your job, or has added more and more responsibilities to your plate to the point where your job become unmanageable, you may have a case for constructive dismissal.
If you've been let go from your job and you feel that it wasn't fair, it's vital to speak with an employment lawyer as soon as possible.
Time is of the essence - the sooner you reach out to an employment attorney, the easier it will be for your attorney to reach a settlement for you. So you get the hard earned money 💲💲 back to your pocket. 💰
If you've been let go from your job unfairly and you're searching for a lawyer who can help you with a case regarding termination without cause, termination for cause, or constructive dismissal, we're here to help. Reach out 👐🏾 to HTW Law today so we can help you get the compensation you deserve for wrongful termination.
Time is crucial, and if you wait too long, your prospects of collecting damages will be diminished, and you may even be prohibited from doing so by law.
Call an employment lawyer to book an employment lawyer no obligation consultation as soon as you become aware of an employment law issue.
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Wrongful Termination Examples
Wrongful Dismissal has been found in cases where an employee was retaliated against by Employer for 1) Filing A Sexual Harassment, Discrimination or Office Harassment Claim; 2) Breaking up in An Affair, Filing for a Separation or Divorce in a family law related dispute; 3) Filing An Occupational Health And Safety Claim.
1. Wrongful Termination In Retaliation of a Sexual Harassment, Discrimination and/or an Office Harassment Claim
Sexual harassment is so widespread and pervasive in certain workplace cultures that it creates a toxic workplace. Harassment & Discrimination should never be tolerated. If you think you were dismissed in retaliation for complaining about it, you may be entitled to bring a wrongful termination case for monetary damages as well as emotional pain and suffering.
2. Wrongful Termination After a Breakup in an Affair, Separation or Divorce
Some employers or managers in a position of influence don’t take a Breakup in an Affair, Separation, or Divorce kindly.
In some situations, the employee received an unexpectedly poor evaluation or work performance report shortly after the split, separation, or divorce.
In other instances, the individual was micromanaged and was singled out for minor faults and blunders, eventually being fired.
It should come as no surprise that a wrongful dismissal claim is brought shortly after the termination, and rightfully so.
3. Unlawful Termination In Retaliation of An Occupational Health And Safety Claim
Employers in Ontario are required by law to provide a healthy and safe working environment that is free of workplace discrimination and workplace harassment pursuant to the Occupational Health and Safety Act.
To put it another way, as an employer, you must not only keep a workplace free of hazardous physical injury risks, but you must also maintain a pleasant, inviting, and hassle-free environment.
If you report that you are being harassed at work and your employer does not conduct an appropriate investigation; or if your employer does not have a workplace harassment policy or program; or if your employer does not provide training on the workplace harassment policy and program, you have a right and an obligation to report such misconduct.
If your employer retaliated against you as an employee, you have every right to file a claim for wrongful termination seeking compensation.
2 - Where to Sue for Wrongful Dismissal & What's the Time Limit?
Choosing where to sue for Wrongful Dismissal is always a source of great frustration.
It is critical that you hire a wrongful dismissal lawyer in Toronto or an wrongful dismissal lawyer near me to help you get through this difficult time as smoothly as possible. There are numerous legal forums to choose from when looking for where to sue for wrongful dismissal.
A - Workplace Safety and Insurance Board (WSIB)
Time Limit to File Complaint: 6 Months within the Incident
Limitation: Only available for certain type of cases.
Under the Workplace Safety and Insurance Act (WSIA), an employee’s civil claim for constructive dismissal that is based on an allegation of workplace harassment may be statute barred in some situations making WSIB the only available legal forum.
Please read the article below to learn more:
WSIB is the forum of choice for many. Section 13 of the WSIA provides for entitlement under the insurance plan for chronic mental stress and traumatic mental stress, where a worker is entitled to benefits under the insurance plan for qualified mental stress arising out of and in the course of the worker’s employment. In these cases, the worker is entitled to WSIB benefits as if the mental stress were a personal injury by accident.
Click here to learn more about how to file a complaint to WSIB.
B - Human Rights Tribunal of Ontario (HRTO)
Time Limit to File Complaint: 12 Months within the Incident
Limitation: Only available for certain type of cases.
In Ontario, the Human Rights Code (The Code) expressly prohibits workplace discrimination and workplace harassment because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. But HRTO will only entertain discrimination and harassment based on protected grounds, mentioned above.
Click here to learn more about how to file a complaint to the HRTO.
C - Ministry of Labour (MOL)
Time Limit to File Complaint: 12 Months within the Incident
Limitation: Only available for certain type of cases.
You can claim under Occupational Health and Safety Act (OHSA) if you have been terminated in Reprisal for trying to enforce the rights protected by OHSA.
OHSA requires employers to provide employees with a healthy and safe working environment that is free from discrimination in the workplace and harassment in the workplace. And an employee who is terminated by the employer for trying to enforce OHSA protections can file a reprisal complaint against the employer with the Ontario Labour Relations Board (OLRB).
Click here to learn more about how to file a complaint to OLRB for a reprisal complaint.
Time Limit to File Complaint: 2 years within the Incident
Limitation: Only available for certain type of cases.
You can file a claim to the Ministry of Labour, Ontario Branch, under the Employment Standards Act if you believe that you have been terminated unfairly, or if you believe that your employer is owing you wages. Do note that if you claims includes claims for workplace harassment, then a ESA claim is probably not for you.
Click here to read more about what’s your protection under the ESA.
Click here to learn more about how to file a complaint to Ministry of Labour.
Time Limit to File Complaint: 2 years within the Incident
Advantage: Much higher damage rewards as compared to other forums, almost all types of cases can be filed to the Court.
Disadvantage: Slow & Costly, and if you lose, you have to pay for the legal fee of the other side.
The filing of an employment law action in Court is reserved for the most serious cases, where the damages awarded in one of the other venues listed above are inadequate.
Or if your circumstance WILL NOT fit into any of the other tribunals, you will be forced to take the matter to Court.
Unfortunately, we have encountered far too many instances when an employee has no option but to bring a wrongful termination lawsuit in Court since the deadline to file in one of the respective statutory forum has expired.
The majority of cases filed with the Court system will be settled at the mediation / settlement stage to reduce cost.
Whether your lawsuit is tried in Small Claims Court or Superior Court is determined by the amount of damage you seek.
In Ontario, the maximum amount you may sue your employer in Small Claims Court for wrongful dismissal is $35,000. If the amount is more, you must take the matter to the Superior Court.
HTW Law - Employment Lawyer is conveniently located right next to the intersection of Highway 401 and Highway 404 with a huge parking lot. You may view our Google Map here.
FREE initial employment law consultation with an experienced employment lawyer for qualified employment law cases!! We handle sensitive employment law clients’ information with care. Call us now at 647-849-6582 or Contact Us Now if you have employment law inquires or want to book an appointment for an employment lawyer consultation.
Related Wrongful Dismissal FAQs:
3 - Why You Need A Wrongful Dismissal Lawyer?
If you've been the victim of wrongful termination, also called wrongful dismissal, you're not alone. While this time in your life may be terrifying, a Toronto wrongful dismissal lawyer can work with you to help you fight back and take control of your life once again.
If you've been let go from your job, it can be an uncertain and scary time. You may be struggling in figuring out how you're going to pay your bills. You may be searching for another job while trying to juggle between your bills and the child care needs.
Wrongful dismissal happens often, and proving that you shouldn't have been let go is our goal. We'll work with you to understand your career situation, and talk about what happened between your supervisor and you that resulted in being let go from your job. We'll go over the issues that you may have had at work, how they were handled, what circumstances led to your wrongful termination.
We'll examine the circumstances of your employment and work with you to discover how your employer violated employment law by terminating your employment. It's key to give us as much details as possible so that we can build a strong case against your employer.
Often, we're able to settle out of Court as we demonstrate to your employer that he or she did something illegal. This can result in your employer offering a settlement, or offering you to have your job back. We'll take care of the back and forth negotiations necessary to get you what you deserve.
We understand that going through a wrongful termination in Toronto can be devastating, and we're here to do the works necessary in helping you get your life back. You know that you shouldn't have been fired from your job, but it can be overwhelming in fighting your employer alone. We have the resources necessary in giving you a fighting chance against corporate giants.
If you've been terminated unfairly, it's essential that you reach out for help as soon as possible right away. You DON'T have to fight this alone. Don't wait!! Time is of the essence.
No-Win-No-Fee for wrongful dismissal cases. Call us now at 647-849-6582 or Contact Us Now if you have any inquiry regarding wrongful dismissal or you want to book an appointment with us for an no obligation wrongful dismissal lawyer consultation.
4 - The HTW Law – Employment Lawyer Approach
HTW Law - Employment Lawyer is a full-service employment law firm in Toronto that also offers employment law services near me to residents of various communities.
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Core Beliefs at HTW Law – Employment Lawyer
At HTW Law - Employment Lawyer, we believe in taking a client-centered approach and are dedicated to developing long-term relationships with our clients while providing employment law services and practical legal advice tailored to their specific needs.
We value every client who visits our employment law Toronto office, even if it is just for a lawyer consultation with an employment lawyer. Our clients aren't just file numbers or cash register receipts; they're living, breathing people in our minds and hearts.
We are not a personal injury firm that also practices employment law because we think it is profitable. We like helping people, which is why we founded HTW Law.
No one at our firm will put a client under pressure to settle an employment law case quickly so that we can laugh all the way to the bank, nor will we make up a plethora of fees and charges and bill you as "out-of-pocket costs."
We are passionate about employment law and keep ourselves up-to-date by attending seminars, conferences, and staying current on employment law cases and legislation.
We want you to succeed in your employment law litigation because we believe that word-of-mouth advertising based on your success stories is the most effective form of advertising.
It's simple. Good employment law Legal Services = happy client.
The HTW Law – Employment Lawyer Advantage
At HTW Law – Employment Lawyer, we provided free employment law consultation to employees in need, and we offer no-win, no-fee counsel in qualified employment law cases, which means that we don't get paid unless and until you get paid. You can rest assured that you are in capable hands, especially given that our success is dependent on your recovery.
We are well-versed in employment laws and human rights laws and have extensive experience in various aspects of employment law practice at HTW Law - Employment Lawyer.
If you have been a victim of workplace harassment, workplace discrimination, age discrimination, disability discrimination, marital status discrimination, or other forms of discrimination prohibited by the Human Rights Code, we can MAKE SURE that the human rights issues are properly addressed in addition to your severance pay, wrongful dismissal or constructive dismissal claims.
HTW Law - Employment Lawyer has the necessary professional expertise to successfully protect your employment rights. At HTW Law – Employment Lawyer, we have a team of medical professionals, accountants, and other experts at our disposal to produce medical reports, financial reports and damage assessments for you when your employment law litigation calls for it.
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Experience counts, and we are prepared to go to court if a resolution cannot be achieved.
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We listen. And from listening to your needs and wants, we formulate our legal approaches.
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We are a full-service employment law firm. We'll take care of it if it is employment law related.
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We know how much your case is worth based on our experience and previous Court judgments in similar situations, and we'll work hard to get you there while paying attention to your needs and desires.
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We understand how tough it is for you to lose your job. We will offer you with confidence, respect and support in a relaxing environment. A kind gesture, a cup of coffee, or something trivial can sometimes be the missing link in rapport building.
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5 - What is Termination Without Cause - Wrongful Dismissal?
When you are terminated without notice you have two possible theories of recovery: 1. The common law remedy of wrongful dismissal, or 2. Termination Pay plus severance pay if certain conditions are met pursuant to the Employment Standards Act.
Click here to learn more about ESA severance pay and termination pay.
Who is Eligible to Claim Wrongful Dismissal?
The employer – employee relationship is governed by the Labour Relations Act (LRA) for unionized workers and the Employment Standards Act (ESA) for non-unionized workers. Employment law generally refers to the area of law dealing with non-unionized workplaces, while Labour law generally refers to the area of law dealing with unionized workplaces.
Wrongful dismissal discussion here only applies to non-unionized working environment. In unionized environments, collective agreements provide for employees’ rights and responsibilities, and union workers’ concerns are to be addressed through their unions and the grievance processes in place.
If you think you might have an action for wrongful dismissal, you are well advised to contact a lawyer immediately to prevent you from statutory barred from doing so, by waiting for too long before action.
What is Termination Without Cause
In a nutshell, termination without cause is termination without just compensation.
When dismissing an employee without cause, the employer may generally elect between 1) providing “working notice” to the employee or 2) ending the working relationship immediately by paying compensation “in lieu” of notice equivalent to the pay and benefits the employee would have earned during the notice period.
The compensation an employer is required to pay is based on the salary, benefits and bonuses the employee would have received during the period of reasonable notice that the employee ought to have received from the employer prior to termination.
In other words, the employer is REQUIRED to continue paying for benefits and bonuses during the notice period even though the employee HAS ALREADY been terminated without cause.
Where an employer fails to provide such compensation or seeks to provide inadequate compensation, an employee’s legal rights may be enforced by proceeding with a claim for compensation for wrongful dismissal.
Please note that a claim of wrongful dismissal might be available to an employee terminated during probation. Unless the employment contract specifies otherwise, probationary status enables an employee to be terminated without notice during the probationary period ONLY if the employer makes a good faith determination that the employee is unsuitable for permanent employment, and provided the employee was given a fair and reasonable opportunity to demonstrate their suitability. See Bhasin v Hrynew, 2014 SCC 71.
What is “Reasonable Notice” In a Wrongful Dismissal Case?
The Bardal factors are usually what’s being used to determine reasonable notice. The basic factors established by the Courts for determining reasonable notice are 1) “the character of the employment, 2) the length of service of the servant, 3) the age of the servant and the availability of similar employment, 4) having regard to the experience, training and qualifications of the servant”.
The list, however, is NOT exhaustive.
Employers have routinely attempted to limit notice periods in the employment contracts, they are unenforceable unless they comply with the Employment Standards Act and other employment law obligations.
Reasonable notice is a very fact driven determination. However, absent exceptional circumstances, the courts have generally applied an upper limit of 24 months.
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After your lawyer consultation with an employment lawyer, there is no obligation to retain our services.
Everyone shops around, which is perfectly fine. We're here to help, and we'd love to be of assistance. We are even more delighted if you find better assistance elsewhere or are able to resolve the dispute without legal intervention.
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We only say what is true with complete honesty. We will tell you right away if your case is weak or if it is a matter that you can resolve on your own without the assistance of an employment lawyer. We are here to assist you, not to rob you of your hard-earned money.
All we ask is that if you have a problem, you open up to us and let us help you. Withholding anything from us, even if it is detrimental to your case, will come back to haunt you later. We've seen it far too often.
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6 - What is Termination for Cause / Summary Dismissal
Termination for cause, also known as summary dismissal, is designated for employees who have engaged in "wilful misconduct" that warrants dismissal without warning. It's important to remember that the "wilful misconduct" Must be linked to the workplace. So it's not enough if the employee has engaged in some kind of wrongdoing outside of work, even if it's illegal.
What is “Just Cause” In a Wrongful Dismissal Case?
Much of the protection against wrongful dismissal stems from termination without cause, because employment may properly be terminated for just cause WITHOUT notice or warning.
One of the defences available to employers to defend termination without notice is termination for cause. But the law is changing. It's worth noting that, according to recent Ontario employment law legal doctrine, the Court is exceedingly unlikely to find a case of termination for cause absent some misconduct as egregious as stealing from a cashier that was recorded on tape by the surveillance camera.
Generally, where an employer has concerns based on an employee’s performance or even misconduct, the employer must warn or advise the employee of the specific concerns, and that the employer must further provide reasonable opportunity to the employee to change.
It is only if no improvement or change is demonstrated after a prolonged period and the presentation of repeated warnings, usually in written form, will "just cause" defence be made available to an employer. Since it’s a factual driven determination, preservation of evidence is key in establishing a “just cause” termination.
However, in rare circumstances of wilful misconduct, “just cause” termination can be established much easily. This is especially so if the employee has engaged in activities that are actionable in courts. Examples of such circumstances could include misappropriation of company funds, criminal fraud, a significant breach of client/ customer confidentiality, etc…
Termination For Cause Clauses After Waksdale v Swegon North America Inc.
The Supreme Court of Canada in Waksdale v. Swegon North America Inc., 2021 CanLII 1109 (SCC) has indirectly affirmed the Ontario Court of Appeal's position that termination provisions should not be analyzed independently but as a whole, and the illegality of one voids the other, even if the unenforceable clause is not at issue . Read this Article to learn more:
So absent a stipulation in the employment contract that termination for just cause would only be invoked in the extreme cases where wilful misconduct on the part of the employee had been committed, it's very likely the entire section regarding termination (involving both termination at will and termination for just cause) will be invalidated by Court. In fact, several recent cases has already applied Waksdale in their legal analyses, see e.g. Sewell v. Provincial Fruit Co. Limited, 2020 ONSC 4406.
Click here to learn more about ESA Wilful Dismissal, Just Cause, and the distinction between the two by reading the blog post "Termination For Cause After Waksdale v Swegon North America Inc."
Recent Wrongful Dismissal Cases involving Aggravated Damage Awarded against Employers Who Terminated Employees for Cause
Humphrey v. Menē Inc., 2021 ONSC 2539 & 2022 ONCA 531
Ms. Humphrey, the employee, was awarded 11 months’ wages at her salary of $90,000.00, aggravated damages of $50,000.00 due to the mental distress she suffered and $25,000.00 in punitive damages. The employer’s litigation conduct, trumped up allegations of cause, dishonesty, failures to comply with court orders and irrelevant references to Ms. Humphrey’s personal life were relied upon by the Court for the award of punitive damages.
In Humphrey v. Menē Inc., the following bad faith conduct were committed by the employer, Menē Inc.:
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The employer informed a vendor that Ms. Humphrey had been dismissed, prior to her receiving the suspension letter. It also sent a message to all employees advising that she was not a fit for the COO role.
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The employer set Ms. Humphrey up to fail by promoting her with limited experience and failing to provide any performance feedback. She was terminated between 6-8 months of starting her executive position.
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The employer subjected her to a toxic workplace. Relying on numerous email and text communications that predated Ms. Humphrey’s promotion, the Court held that the CEO’s behaviour towards Ms. Humphrey violated “a fundamental and implied term of any employment relationship…to treat the employee with civility, decency, respect and dignity”.
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The employer exaggerated performance issues and alleged cause when it knew or ought to have known it had none. Further, it refused to abandon its position of cause for almost a year after initially asserting it.
Although the reasonable notice was reduced to 6 months on appeal, the Court of Appeal, in 2022 ONCA 531, ruled that the aggravated damages of $50,000.00 due to the mental distress Humphrey suffered and $25,000.00 in punitive damages awarded by the trial judge would stay. A legal cost of $18,500 was awarded against the employer.
Ojanen v. Acumen Law Corporation (“Acumen”), 2021 BCCA 189
In Acumen, the British Columbia Court of Appeal similarly punished an employer for its baseless position of just cause and reprehensible actions in the manner of termination, which included suing the employee.
The trial judge awarded her almost $19,000.00 in general damages and $50,000.00 in aggravated damages. On appeal, Ms. Ojanen was awarded an additional $100,000.00 in general damages on the basis that she had lost the opportunity to become a lawyer at the end of her articles. Further, the Court of Appeal awarded $25,000.00 in punitive damages, finding that the trial judge’s conclusions in respect of bad faith warranted an award of punitive damages to achieve the judicial goals of denunciation, deterrence and retribution.
Fobert v. MCRCI Medicinal Cannabis Resource Centre Inc. (“Fobert”), 2020 BCSC 2043
In Fobert, the Court has sent a clear message that harsh employer conduct at the time of dismissal, including trumped up cases of just cause, avoidance of statutory obligations and intimidating conduct will continue to be met with punishing awards of compensation and punitive damages.
In this case, the employee’s employment was terminated as a result of a restructuring and she was offered less than what her contract and the statutory minimums entitled her to. Initially told that these deficiencies would be remedied, she was then invited to a meeting with the parent company.
The representative of the parent company who attended the meeting made serious allegations of financial mismanagement against the employee, who had served as a low-level office administrator. The representative offered “500 bucks out of his own pocket,” but no statutory or contractual entitlements. The Plaintiff subsequently suffered an anxiety attack, and was left in dire financial straits until she found reemployment.
While the employee was relatively uninjured by the termination itself, her mental and physical health were found to have deteriorated following that subsequent meeting. The Court ruled that while the employer’s conduct was less serious and had less extreme consequences than in more noteworthy cases with large awards, awards of $25,000 for aggravated damages and $35,000 for punitive damages were appropriate in the circumstances, on top of a 8 week common law reasonable notice.
7 - What Remedies Are Available In a Wrongful Dismissal Cases?
The remedy for wrongful dismissal is an award of damages equal to the earnings (salary, commissions, bonuses, and other monetary allowances) and other contractual entitlements (benefits) that the employee would have received during the appropriate notice period, subject to certain deductions such as mitigation earnings.
In addition, employers may be held accountable for mental distress damages caused by “bad faith” conducts of the employers in related to the termination provided that the employee suffers actual provable psychological harm and medical injury.
Extended or consequential economic losses flowing from the failure to provide proper notice have also been awarded if these were within the parties’ reasonable contemplation when entering the contract.
Punitive damages may also be awarded in exceptional cases where the employer’s conduct constitutes a marked departure from ordinary standards of decency, and that compensatory damages are insufficient to express society’s repugnance at the conduct and to punish and deter.
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Duty to Mitigate in a Wrongful Dismissal Case
Duty to Mitigate is not applicable to an employee of a fixed term employment contract. The employer is responsible to pay for the remaining balance of the fixed term contract, if such an employee is terminated before the fixed term expires.
However, an indefinite / permanent employee who has been unfairly dismissed is required to make reasonable and diligent effort to mitigate, seeking re-employment. In wrongful dismissal actions, damages may be reduced if such efforts are not proven.
Reasonable re-employment options are not limited to job-searching efforts. The test is whether reasonable, consistent and active ongoing steps have been taken to move toward a return to the workforce on a reasonable basis.
For instance, returning to school or starting a new business have been held to be reasonable mitigation. For this reason, as an employee contemplating a wrongful dismissal action, it is crucial to keep a comprehensive record of job search and other reasonable efforts to mitigate damage.
What Earnings Count in Considering the Duty to Mitigate in Wrongful Termination?
In Brake v. PJ-M2R Restaurant Inc., 2017 ONCA 402 (“Brake”), in her concurring reason at the Court of Appeal, Justice Feldman explained why the employee’s earnings as a cashier at Home Depot are inoperative to reduce her wrongful dismissal damages at paragraph 158:
It follows, in my view, that where a wrongfully dismissed employee is effectively forced to accept a much inferior position because no comparable position is available, the amount she earns in that position is not mitigation of damages and need not be deducted from the amount the employer must pay.
That view has begun to gain traction and is becoming the norm based on recent legal jurisprudence.
MacKenzie v. 1785863 Ontario Ltd., 2018 ONSC 3442
The plaintiff in MacKenzie worked as a general manager with the defendant employer for approximately five years, having been recruited from previous stable employment. At the time of his dismissal, Mr. MacKenzie was 65 years old and earned $65,000 per year (or $5,416.66 per month).
Where Mr. MacKenzie lived (Dryden), there was a lack of comparable employment. As such, he worked first for his wife’s consultancy business (earning $2,000 per month), and later accepted work with a regional tourism organization earning $1,500 per month.
The Court found Mr. MacKenzie had been wrongfully dismissed and awarded damages equal to 9 months’ pay in lieu of reasonable notice ($48,749.94) plus exemplary damages. Justice Pierce then declined to deduct any post-dismissal earnings from the damages award, at para. 14, finding that:
Mr. MacKenzie was obliged to take positions that were inferior in responsibility and salary after his termination. Accordingly, I find that the income earned should not be deducted from the notice period awarded.
McLean v Dynacast Ltd., 2019 ONSC 7146
The plaintiff in McLean was employed with the defendant employer for 34 years. At the time of his constructive dismissal from employment, he was 58 years old, working as a sales and service technician, earning $60,000 per year.
Following his dismissal, Mr. McLean work for a former supervisor for 3 weeks at a plant in Mexico, did periodical work wiring electrical panels for another business (on an as-needed basis) and subsequently started a roofing business from which, as of the date of trial, had created no income.
The Court awarded Mr. McLean damages in lieu of a 28-month reasonable notice period and declined to deduct the majority of post-dismissal earnings (including those from the plaintiff’s roofing business).
The Court found at para. 87 that “as it would not be a failure to mitigate if a dismissed employee turned down an inferior position, so it follows that if the employee accepts an inferior position no earnings from that job should be considered as mitigation earnings for deduction from an award for wrongful dismissal.”
If you think you have been wrongfully dismissed, or if you are an employer being served with a statement of claim for wrongful dismissal, you are highly recommended to seek legal advice. Don't wait!! Time is of the essence. No-Win-No-Fee for wrongful dismissal cases. Call us now at 647-849-6582 or Contact Us Now for inquiries or to book an appointment.
Restatement as a Form of Remedy of A Wrongful Termination Case
If you were wrongful dismissed in reprisal for attempting to defend your employment law rights (for example, if your employer fired you for refusing his sexual approaches, or if you tried to stop your boss from harassing you at work and were fired, etc...), reinstatement is likely.
HRTO
For example, in Fair v. Hamilton-Wentworth District School Board, 2013 HRTO 440, the Human Rights Tribunal of Ontario (HRTO) granted reinstatement to the discriminated-against employee.
In such instance, the employee was fired on or around July 8, 2004, and the HRTO ordered his reinstatement on or around March 14, 2013!
This judgement showed HRTO's readiness to reinstate workers and pay back wages, regardless of the length of time after their firing.
The HRTO's judgement was upheld by the Court of Appeal in 2016 ONCA 421, making it one of the most important pieces of law in this field for some time.
Ministry of Labour
The Ministry of Labour – Health and Safety has similar authority. The Ontario Labour Relations Board (OLRB) is an independent tribunal that may investigate a worker's allegation of retaliation or a referral from the Ministry of Labour, Training and Skills Development in order to mediate a resolution.
If a settlement cannot be reached, the OLRB may conduct a consultation or hearing and issue orders to:
• eliminate or modify any penalty imposed by the employer;
• reinstate/rehire the worker; and
• compensate the worker for any losses incurred as a result of the penalty.
Court System (Small Claims Court, Superior Court, etc…)
Because Courts are reluctant to order people to work together, Reinstatement in wrongful dismissal cases usually happens only if both parties agree, otherwise Courts are reluctant to force people to work together, if monetary compensation itself is sufficient.
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High Damage for Wrongful Dismissal
In a wrongful dismissal lawsuit, it is the Employer's conduct at termination and after termination that decides whether or not aggravated and punitive damages are warranted. When the conduct of the employer at termination and after termination is abusive, flagrant, egregious, high-handed, and humiliating, high damage is likely. High Damage is only available if you sue in Court.
Extraordinary / Aggravated / Moral Damage In Wrongful Dismissal Cases
Moral damages are also known as aggravated or Wallace damages. It's a common misconception that the heinous nature of workplace harassment, sexual harassment, and workplace discrimination by itself should justify these aggravated damages.
The Court, on the other hand, has repeatedly stated that moral damages have nothing to do with the unlawful acts of harassment or discrimination themselves, because the damages awarded for these tortious conducts have already taken into account the grotesque nature of the wrongful conducts.
The Court, quite consistently, have found that these moral damages are only to be awarded in wrongful dismissal claims against an employer who engaged in conduct during the course of an employee’s dismissal that was "unfair" or "in bad faith" and caused the employee mental distress that exceeded the "normal distress and hurt feelings that result from a dismissal."
Unlike punitive damages, which are intended to punish the employer, moral damages are compensatory in nature.
Moral damages are available when the injury or loss to the employee is foreseeable as a result of the employer’s conduct in the manner of dismissal.
Punitive Damage In Wrongful Dismissal Cases
The Supreme Court has stated in Whiten v Pilot Insurance Company, 2002 SCC 18, punitive damages are the exception rather than the rule, and are only imposed if there has been high-handed, malicious, arbitrary, or highly reprehensible misconduct that departs to a marked degree from ordinary standards of decent behaviour.
Punitive damages are typically awarded only when the wrongdoing would otherwise go unpunished or when alternative punishments are insufficient or are likely to be insufficient to achieve the goals of retribution, deterrence, and denunciation.
Punitive damages are NOT to compensate the plaintiff, but to give a defendant his or her just desert (retribution), to deter the defendant and others from repeating the same wrongdoing in the future (deterrence), and to express the community's collective disapproval (denunciation) of what has occurred.
In recent years, aggravated damages and punitive damages are frequently awarded. If you are an employer, in order to protect yourself from High Damage award in Wrongful Dismissal cases, DO investigate employee complaints of harassment and discrimination, MOST DEFINITELY make necessary accommodations, and NEVER fire an employee in reprisal for filing a valid complaints against legitimate Occupational Health and Safety Act (OHSA) and Human Rights Code violations.
More importantly, if a wrongful termination lawsuit has been filed against you as an employer, DON'T delay the process; do everything you can to expedite the process and, if possible, try to negotiate a fair settlement with the employee.
Please note that duty to mitigate and high damages applies to both constructive dismissal and wrongful dismissal cases. Click here to learn more about constructive dismissal.
We hope you now have a better understanding of what is Wrongful Dismissal, where to sue for Wrongful Dismissal, what is reasonable notice in a Termination Without Cause case, what is just cause in a Summary Dismissal case, and what Remedies are available in Wrongful Dismissal.
When you require assistance with a wrongful dismissal case, HTW Law – Employment Lawyer is only a phone call away. There's no need to search around for a wrongful dismissal lawyer who is ready, willing and able to assist you. When you call, we will be there to help you. We look forward to serving you soon.
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