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Refresher on Wrongful Dismissal

A wrongful dismissal occurs when an employee’s employment is terminated without adequate notice or pay in lieu of notice. If an employee has been wrongfully dismissed, they may seek damages in the amount equal to what would have been owed in the form of notice pay.

What is Notice/Pay in lieu of notice?

Notice (or pay in lieu of notice) is intended to provide compensation to an employee by paying them an amount equivalent to their salary (and all other benefits they received while employed) for the estimated time it will take the employee to find employment which is comparable to the job from which they were dismissed. The amount of notice required under law varies on a case-by-case basis. Some key factors considered when determining the length of time for which the employee should be paid includes:

  • The employee’s age at the time of termination;
  • The nature of the position from which the employee was terminated;
  • The employee’s credentials/skills;
  • The length of the employee’s service with the employer.

If the matter goes to trial, a judge will consider the above factors (and any others that a decision-maker feels is relevant) to determine the amount of time it will take the employee to secure similar comparable employment and to order that the employer provide this to the employee until the earlier of (1) the end of that period or (2) when the employee manages to find another job. 

What if I Have a Contract?

An employee’s entitlement to notice (or compensation in place of notice) can be limited by a valid termination clause in an employee’s employment contract. Given the recent scrutiny of termination clauses by the courts, poorly drafted clauses, or clauses that were drafted many years ago are at risk of being found enforceable.

For this reason, don’t assume that if you have a contract that you have no options. 

Rather, it’s important to see an experienced employment lawyer who can assess the validity of the termination clause and advise you on whether you can secure more. 

If you believe you have been the victim of wrongful dismissal, constructive dismissal, or otherwise and would like to consult with a qualified employment lawyer to better understand your rights and obligations, please contact Sultan Lawyers by telephone at 416-214-5111 or by email at mlahert@sultanlawyers.com


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