What you need to know about wrongful dismissals

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Wrongful dismissals are one of the most misunderstood aspects of employment law in Canada.

Millions of Canadians have lost their jobs this year, either through terminations or temporary layoffs thanks to the coronavirus pandemic, and 1.8 million people were still jobless as of October. This means it’s more important than ever to understand what wrongful dismissal really is.

Based on my many years as an employment lawyer in Ontario and British Columbia, I can tell you that a failure to grasp the meaning of a wrongful dismissal could cost an individual tens of thousands of dollars in severance pay.

What is a wrongful dismissal?

Contrary to popular belief, a wrongful dismissal does not occur when a company fires an employee without a good reason or for the wrong reason. For instance, your employer may fire you citing performance issues when you’ve been performing admirably at your job. Or perhaps you are told that you are losing your job because your position is being eliminated, even though you know for a fact that the position will continue with a replacement. Neither of these situations is a wrongful dismissal.

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A wrongful dismissal in Canada takes place when an employer ends their relationship with an employee and fails to provide them enough advance notice of the termination or a proper severance package.

READ MORE: The 5 facts you need to read about severance pay

There are generally three situations where an employee may be wrongfully dismissed:

  • When an employer terminates an employee for any reason outside of serious misconduct (known as a termination without cause), and fails or refuses to provide the appropriate amount of severance pay.
  • When an employer incorrectly fires a worker for cause, without severance pay, due to alleged serious misconduct.
  • When a company triggers a constructive dismissal by making negative changes to an employee’s pay, duties, office location or overall work environment, and therefore owes them severance.

How do I know if I have been wrongfully dismissed?

One of the quickest ways to find out if you may have been wrongfully dismissed is to use the Severance Pay Calculator. This tool will review basic aspects of your employment, including your age, type of job, time spent with the company and the amount of severance you have been offered, to determine if you are owed more.

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READ MORE: Severance pay in a bad economy

Your next step should be to contact an employment lawyer at Samfiru Tumarkin LLP to have your situation examined by an experienced legal professional. We can review the termination, analyze any clauses in your employment contract and provide a more comprehensive understanding of what your severance package should look like.

Should I accept a severance offer from my employer?

While it may be tempting to accept the severance package initially offered by your employer, your best course of action is to consult my team before taking it.

Out of the hundreds of thousands of people we have spoken to over the years in Ontario and British Columbia, a vast majority were offered grossly inadequate severance packages when they were let go from their jobs. With our assistance, you can secure an amount that best reflects your unique circumstances.

READ MORE: What you need to know before you sign an employment contract

If the company applies a deadline on the severance offer, know that you actually have up to two years following your termination to pursue your full severance pay.

Is my employer only required to pay severance based on provincial standards?

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No. Unless a termination clause in your employment contract states otherwise, you are owed severance pay in accordance with both provincially legislated and common-law rules. While the former may yield only weeks of pay, the latter can result in up to 24 months’ pay.

When you lose your job, seek legal advice before you sign on the dotted line and potentially throw away your employment rights.

Have you been wrongfully dismissed from your job? Not sure if you’ve been offered a fair severance package?

Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario or British Columbia. Get the advice you need — and the compensation you deserve.

Lior Samfiru is an employment lawyer and partner at Samfiru Tumarkin LLP, one of Canada’s leading law firms specializing in employment law and disability claims. He hosts Canada’s only Employment Law Show on TV and radio.