Skilled Representation In Wrongful Dismissal Claims

The Employment and Labour Group at Kane Shannon Weiler LLP provides advice and representation to both employers and employees in termination cases.

In Canada, employers may terminate an employee’s employment for cause or without cause. In the few cases of termination with cause, the employer may proceed without notice and severance package. More commonly, where a termination is without cause, the dismissed employee is entitled to notice or payment in lieu of notice.

This entitlement may be set out in a written employment contract; however, where the contract does not specify (or is not clear enough in its language), an employee may be entitled to what is called “reasonable notice” at common law. What is “reasonable” depends on multiple factors, including the character of the employment, length of service, age, availability of similar employment. Particularly during these COVID-19 days, we must consider the impact of the pandemic in assessing the reasonable notice. Where an employer provides a period of notice or severance package that is insufficient, the employee might sue for wrongful dismissal. Given the complicated nature of some contractual relationships, wrongful dismissal can be an especially difficult legal area to navigate and can result in costly litigation.

A wrongful dismissal occurs when an individual is terminated in the absence of just cause without being provided with adequate notice of termination or in a manner that violates the conditions outlined in an employee contract. Given the complicated nature of some contracts, wrongful dismissal can be an especially difficult legal area to navigate.

At KSW Lawyers, our Employment & Labour Group is committed to taking a thorough approach when it comes to advising employers and employees regarding a wrongful dismissal case. We take the time to understand your situation and to answer any questions you may have. We aim to find a resolution that offers the best possible outcome with the least amount of stress and at a reasonable cost.

Understanding The Challenge Of Constructive Dismissal

Constructive dismissal occurs when an employer unilaterally imposes a fundamental change to the terms of employment. While each case must be assessed on its own unique facts, some examples of constructive dismissal include:

• compensation package reduction;
• relocation;
• loss of job status and responsibilities;
• change of working hours; and
• workplace harassment, abuse, or discrimination.

In those cases the employee can quit and sue for wrongful dismissal. Constructive dismissal can be particularly difficult to navigate because while an employee may not have been dismissed in the traditional understanding of the word, if their position has fundamentally changed, the courts may treat that as a termination without notice.

Matters relating to constructive dismissal must be addressed quickly. Employers need to consider all the aspects of implementing changes that might result in a constructive dismissal. Employees must consider whether they want to take the risk of resigning and having a court decide there was not a constructive dismissal. Further employees must decide whether they should accept the changes as part of their duty to mitigate their damages. These decisions must be made in a timely fashion. Our team of employment lawyers are well-versed in handling these cases and will provide employers and employees with support and guidance with the aim of achieving the most favourable outcome.