Wrongful Dismissal FAQs
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.
Please note that if you haven’t file a claim of wrongful dismissal within the 2 years limitation period, you are statutory bar by the Limitations Act, to do so. There was a temporary pause on limitation period as a result of the COVID-19 pandemic from March 16, 2020 to September 13, 2020 by Ontario Regulation 73/20.
Usually you MUST file an ESA claim after an unfair termination within two years, which is referred to as the “limitation period” in employment law context and in civil litigation. If you file a claim within the two-year limit after an illegal termination an employment standards officer will investigate the claim.
Where to Sue for Wrongful Dismissal? There are many legal forums to choose from, WSIB, HRTO, Ministry of Labour Health and Safety OHSA, Ministry of Labour Employment Standards ESA, Small Claims Court, Superior Court, just to name a few. Will discuss some of the more common forums in this post.
Termination for cause is dismissal without notice is reserved for “gross misconduct” of employee that is serious enough to be dismissed without warning. Do note that the “wilful misconduct” MUST be job related. So it's not enough if the employee has misconduct of some sort, even if criminal, outside of the workplace.
If you have been wrongfully terminated as a result of reprisal against by employer for trying to enforce your employment law entitlements (If your boss fired you for rejecting his sexual advances, or if you are trying to stop your manager from harassing you at work and you got terminated, etc...), reinstatement is likely.
Reserved for serious wrongful dismissal cases. It’s the conduct of an Employer at termination, and post termination that determines whether aggravated and punitive damages should be allowed in a wrongful dismissal case, where the conduct at termination and post termination are abusive, egregious, high-handed, demeaning.
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.