As an employment lawyer, I talk to many employees in Alberta who are adamant that they have been wrongfully dismissed because their employer fired them for no reason or for a reason that was inaccurate.
But this isn’t really what’s meant by wrongful dismissal. Often, people end up focusing too much on that term and getting distracted from what they should really be thinking about when they lose their job.
Here’s what to know about wrongful dismissal — and how to tell if it’s happened to you.
What is a wrongful dismissal?
A wrongful dismissal takes place when an employer in Alberta ends their relationship with a non-unionized employee and fails to provide them enough advance notice of the termination or a proper severance package.
If your employer tries to let you go without compensation, or their severance offer is too low, you have been wrongfully dismissed.
The only time your employer can let you go without severance is if they fire you for just cause. This isn’t easy for an employer to establish, however, and it only applies if you have done something that makes it impossible to continue employing you.
Even if you have done something wrong at work or your productivity has recently dropped, this does not mean your employer can dismiss you for cause. Unless you have committed a serious offence or act of workplace misconduct, the company is still likely obligated to pay you severance when they let you go.
READ MORE: What does it mean to get a working notice of termination? Employment lawyer explains
What types of wrongful dismissals are there?
There are generally three situations where an employee may be wrongfully dismissed in Alberta.
The first kind occurs 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.
The second kind applies when an employer incorrectly fires a worker for cause, without severance pay, due to alleged wrongdoing. When the incident does not meet the high threshold for this type of termination, which it rarely does, it is actually a wrongful dismissal.
The third type occurs 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 an appropriate severance package.
How do I know if I’ve been wrongfully dismissed?
One of the quickest ways to figure out if you may have been wrongfully dismissed is to use the severance pay calculator developed by my firm, Samfiru Tumarkin LLP.
The calculator 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 look at what you may be legally owed.
In my practice, I’ve heard from many employees who thought they were paid the appropriate amount by their employer. In one situation, an employee was ready to accept the severance package offered by her company, but her husband convinced her to contact us after he came across our calculator. The result was a package that was almost double her original offer.
How do you calculate severance pay?
Since severance is meant to provide financial relief between jobs, the amount of severance pay you get in Alberta is generally tallied with reference to the length of time it should take you to find a comparable job.
This is done by looking at things like your time spent with the company, age, the level of specialization involved in your job, whether you exercised management functions and the availability of similar employment.
While Alberta’s Employment Standards Code can guarantee a minimum amount of severance — as much as eight weeks’ pay, depending on the time you spent at the company — the province’s court system can provide packages that reach as high as 24 months’ pay.
Your age is a vital factor in calculating the amount of compensation you are owed, with older employees generally being entitled to more. This is because they may have a harder time securing a new position at the same pay.
READ MORE: Do you lose severance if you don’t sign by your company’s deadline? Lawyer explains why not
What should an employee do if they’ve been wrongfully dismissed?
If you suspect you’ve been wrongfully dismissed, your next step should be to contact an experienced employment lawyer, like the team at Samfiru Tumarkin LLP, to have your situation examined.
We will review the termination, analyze any clauses in your employment contract and provide a more comprehensive understanding of what your severance package should look like. Our lawyers often work on contingency fee arrangements to reduce upfront costs for our clients and reduce financial barriers to justice.
How long do I have to file a claim for wrongful dismissal?
In Alberta, you have two years from the moment you are dismissed from work to start a legal claim against your employer. Our team often settles these matters successfully on behalf of our clients, however, so that they never progress to this point.
The goal of an employment lawyer is to negotiate a proper severance package as quickly as possible so you can secure the financial support you need as you look for new employment.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
How do I start a claim?
An employment lawyer can prepare and start a wrongful dismissal claim on your behalf if the offered severance package is not in line with your legal rights. In most cases, employers will respond to a letter from an employment lawyer by immediately increasing their offer.
If this does not happen, and starting a claim in court is necessary, our team is ready to take the next step to get you what you’re owed.
Have you been wrongfully dismissed? Not sure how to get a fair amount of compensation after losing your job?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Karen Tereposky is an employment lawyer in Alberta and an associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.