Ottawa Wrongful Dismissal Lawyer
Our Ottawa employment lawyers handle claims for wrongful dismissal. In Ontario, a dismissal is wrongful when an employer dismisses an employee without cause and does not provide reasonable notice or payment in lieu of notice. We also handle constructive dismissal claims.
If there is cause for termination, then an employer does not need to provide reasonable notice or payment in lieu thereof. However, an employee may still be entitled to notice, termination pay, or severance pay under Ontario’s Employment Standards Act (“ESA”) even where there has been cause for dismissal if the employee has not been terminated for “wilful misconduct, disobedience or wilful neglect of duty”.
Notice Under the ESA
The ESA provides that an employee who has worked a minimum of three months is entitled to a minimum notice period. If an employer does not provide the minimum notice period, then the employer must provide payment in lieu of written notice (also known as “termination pay”).
The notice requirements under section 57 of the ESA are based on the length of employment – from one week of notice for an employment period of less than one year, up to eight weeks of notice for an employment period greater than eight years. The minimum notice periods under the ESA cannot be contracted out of, although an employment contract can provide greater notice periods.
There are certain exemptions to the written notice and termination pay requirements. This includes where an employee is guilty of willful misconduct, disobedience or non-trivial willful neglect of duty. Our Ottawa ESA lawyers can help answer additional questions.
Notice Under the Common Law
Many employees are entitled to a greater notice period under the common law than under the ESA. To establish the notice period at common law, the court will look to the employment contract to see if the parties have agreed on the amount of notice. The employee and employer can agree on the amount of notice the employee is entitled to as long as it does not fall below the ESA minimums.
If the employment agreement does not stipulate the amount of notice (or there is no written agreement), then the court will look at the particular factors of the case to determine what is reasonable notice in the circumstances. In Ontario, they a key court decision outlined the following factors are to be taken into account to establish reasonable notice:
- The character of the employment;
- The length of service;
- The age of the employee; and
- “The availability of similar employment, having regard to the experience, training and qualifications” of the employee.
While these factors are not exhaustive, they have been identified by the courts as the main factors to be applied, on a case-by-case basis.
Under the common law, an employer is not required to provide notice, or payment in lieu, if there is “just cause” for the employee’s dismissal (also known as “summary dismissal”). The onus is on the employer to establish that there has been just cause and the onus is a high one. There is no set definition of “just cause” in the caselaw – rather, the courts take a case-by-case approach and whether there is cause will depend on the circumstances of the case.
Entitlement to Other Benefits During Notice Period
Generally, an employee will still be entitled to the same benefits they previously held, during the notice period. Under section 60 of the ESA, the employer cannot reduce the employee’s wages or alter the terms or conditions of employment. The employer must also continue to pay the employee’s wages and make benefit plan contributions until the notice period ends.
Do You Need an Employment Lawyer?
If you think you may have been wrongfully dismissed, or have another employment law issue, contact one of our lawyers today for a free consultation by completing our online contact form, or calling our office at (613) 518-2418.