In general terms, an employee is wrongfully dismissed when an employer breaches a term or several terms in the contract of employment, or a statute provision or rule in employment law when terminating the employee.
In Canadian law, an employer is obliged to give notice of an employee’s termination. Notice is measured in units of time and is defined as an advanced warning given by the employer to the employee. The employer must warn the employee that the employee’s employment will be terminated. The employer can provide the notice in several ways including working notice, pay in lieu of notice, and a mix of working notice and pay in lieu of notice.
1. Reasonable Amount of Working Notice
If the employer provides the employee with a reasonable amount of working notice, then subject to statutory requirements, the employer owes the employee no additional money.
Under provincial employment standards, employees with more than three months of employment are entitled to a minimum of 1-week notice. An additional week per additional year of employment is added for up to a maximum of 8 weeks. This however does not take into account the requirements under the common law.
2. Pay in Lieu of Notice
Pay in lieu of notice, also referred to as termination pay, is the amount of money an employer must pay to the employee because of the employer’s failure to give the employee a reasonable amount of notice before terminating the employee’s employment. In other words, it is money compensating the employee for what he would have earned had he been given reasonable notice.
Dismissal With or Without Cause
There are two basic types of dismissals. The first is dismissal with cause, and the second is dismissal without cause. A termination with cause occurs when an employee’s behaviour breaches a fundamental term of the employment contract, and in such a case, an employer can dismiss the employee without providing any notice.
If no cause exists, and yet the employer terminates the employee without providing reasonable notice, then the dismissal is a wrongful dismissal. In this case, the employee can claim monetary and non-monetary damages that would compensate the employee for what he would have earned or received during the lawful notice period.
Return to Blog