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This content is for informational purposes only and is not intended to provide legal advice.
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Maybe it’s because we’ve all seen it so many times in movies and on TV, but many Ontarians, especially those just starting their careers, think that a) an employer can only fire someone if they have a reason to and that b) a fired employee is only entitled to 2-weeks notice.
These assumptions are generally incorrect, and not knowing the laws around termination and the actual legal definition of wrongful dismissal means that far too many people in Ontario are wrongfully dismissed without even knowing it or knowing that they are/were entitled to a longer notice period or bigger severance package.
That’s why, if you were terminated for any reason, speak to a Toronto employment lawyer right away to discuss the circumstances of your termination and the amount of termination pay (if any) you received.
As you will learn after reading the information below, wrongful dismissal isn’t based on why you were terminated but how you were dismissed and if you received the proper amount of notice you were entitled to under the law.
The Definition of Wrongful Dismissal in Ontario
Legally, an employer can end an employment at any time and for any reason as long as it does not violate the Human Rights Code. This is known as termination without cause. In a termination without cause, employment laws in Ontario require an employer to notify the employee of their intention to end the employment before they actually do so.
This is to give the employee an opportunity to find a new job before they are out of work and stop receiving paycheques. Alternatively, an employer can terminate the employee immediately and pay them what they would have earned during the notice period.
The length of time of the notice depends on several factors, including if you have an employment contract, what your employment contract says regarding termination pay and notice, whether that clause is enforceable and, potentially, other factors as well. More on that in the next section.
Wrongful dismissal means that you were terminated without cause but were not given the amount of notice beforehand that you were entitled to or the pay in lieu of a notice period.
Your Right to Notice if You Are Terminated Without Cause
A non-union, non-federal employee whose employment is governed by the Employment Standards Act, is entitled to the minimum notice period allowed in the ESA, plus any applicable severance if employed for five years or more under an employer with a payroll of at least $2.5 million. (Federally-regulated employees are bound by the rules and allowances in the Canada Labour Code.)
However, since the common law states that the notice period must be a “reasonable” amount of time for the employee to find a new job, many terminated employees (who don’t have an enforceable termination clause in their employment contracts) are entitled to a longer notice period than the ESA minimums.
Under the common law (judicial rulings in previous court cases), judges look at more than the length of your employment to determine what a “reasonable notice period” should be for you to find new employment. Some of the factors they consider include:
- Your age.
- How long you worked with your employer.
- The position you last held.
- The availability of a similar role.
In other words, there’s a good possibility that a severance package that your employer offers you is considerably less than what you are entitled to. That’s why it’s crucial that you speak to an employment lawyer before you accept any severance package you’re offered. Despite what your employer might try to tell you, you do not have to accept their offer by any deadline they give you.
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