What Factors Are Considered In Determining Wrongful Termination?

If you feel you've been wrongfully terminated from your job, you may be wondering whether you have any legal recourse against your employer. Although there are a number of laws and court cases addressing wrongful termination, unfortunately, there is no hard-and-fast rule you can use to declare your case justified or unjustified. Read on to learn some of the considerations an attorney may make when deciding whether to help you pursue a claim of wrongful termination or discharge.

How is wrongful termination defined?

Under Canadian law, employment is often governed by either an oral or written contract. These contracts may spell out specific terms of employment, including conditions of discharge. These contracts may also provide the employer or employee with more -- or fewer -- rights than they might have under Canadian law if there were no contract.

If an employment contract takes away any rights an employee would otherwise have, there must be "consideration" for this waiver of rights -- that is, the employee must be provided some additional benefits in exchange for giving up some rights. An employment contract which takes away an employee's rights and provides no additional compensation or other benefits will be seen as one-sided, and likely ruled invalid by the courts.

If there is no employment contract -- either written or oral -- Canadian law requires "reasonable notice" of termination of employment. However, reasonable notice is often defined by factors specific to the situation. In some situations, such as when the employee is dealing with confidential information, or there is a concern that the employee will respond to the termination by sabotaging information or equipment, a day or less may be considered "reasonable"; in other situations, "reasonable" may be defined as two weeks to a month or more.

In addition, if the discharge is made "for cause" -- for the employee's violation of an employment contract or Canadian law -- no notice is needed. The only situations in which you'll have a cognizable claim for wrongful discharge is if the discharge was made both without cause and without reasonable notice.

What factors will the courts consider? 

Again, the two primary considerations in a wrongful discharge case are cause and notice.

  • Was the discharge for cause, or without cause?
  • What type of notice was required? 
    • Is there an employment contract which specifies this?
    • If no contract, what level of notice would be considered "reasonable"?

An employment attorney will help you evaluate whether your discharge was made in violation of Canadian law. If your discharge was made outside the terms set forth in an employment contract, or if you were immediately told to leave the premises without any misconduct on your part, it is likely that you have a good claim.

In some cases in which no notice was given, your employer may claim that your discharge was for cause -- you and your attorney may be able to prove that the "cause" on which your employer relied is false or unjust.

What remedies can you seek?

If a court determines that you were unlawfully dismissed, you may be entitled to reinstatement or severance pay -- but probably not both.

  • Reinstatement puts you in the same position or level of employment in which you were before you were fired. You may not necessarily be reinstated to the exact same job (particularly if your previous supervisor was the person who terminated you) but you are entitled to a position at the same level.
  • If reinstatement is not a good option, you may also receive severance pay from your employer. In general, you will receive one week of pay for each year you were employed (but no more than eight weeks).

Be sure to consult an experienced wrongful dismissal lawyer if you feel you were wrongfully discharged. Even if the attorney cannot or will not take your specific case, he or she will be able to inform you of all the rights you have under Canadian law.