507 King St. E. Toronto, ON, M5A 1M3

chris@robertson-law.ca

Chris Robertson, B.A., LL.B.

416 526 0498

Chris Robertson, B.A., LL.B.

Chris Robertson, B.A., LL.B.

Chris Robertson, B.A., LL.B.

416 526 0498

Chris Robertson, B.A., LL.B.

Chris Robertson, B.A., LL.B.

Wrongful Dismissal

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PRACTICE OVERVIEW

Wrongful Dismissal

Generally, employers in Ontario may choose to end an employment relationship at any time whether with or without cause although there are some exceptions (see Discrimination in Employment). Where an employer has cause to terminate the employment relationship that employer may have no obligation to the departing employee. Demonstrating cause for termination, however, can be challenging for employers in the Province of Ontario This is particularly so in the absence of demonstrable employee conduct which offends the community’s workplace expectations. Employers considering termination for cause should consult experienced counsel prior to the termination, where possible. An unsuccessful allegation of cause may attract a monetary consequence for an employer. Employees who have been terminated for cause should consult with counsel prior to signing any employer documentation in respect of such termination.

Where an employer terminates the employment relationship without cause that employer has two broad categories of obligation to the departing employee: 1. Statutory minimums such as those contained in the Employment Standards Act (“ESA”) for provincially regulated employees and those contained in the Canada Labour Code (the “CLC”) for federally regulated employees; and 2. Common-Law reasonable notice.
Many employees are aware of their statutory rights but are oblivious to their entitlements at common-law upon the termination of their employment. Such common-law entitlements may include extended working notice of termination, wage payment, bonus payment, commission payment, group health benefit extension, the right to convert group life insurance, extended disability coverage, continued participation in RRSP contribution plans, continued participation in pension plans, or continued participation in stock option plans. The assessment of each employee’s entitlements is specific to the facts of their employment and compensation arrangement. These common-law entitlements may be restricted by a properly implemented written employment agreement or barred by an enforceable release signed by the employee. In certain instances, independent contractors may also have rights or entitlements at common-law. Employees and independent contractors should consult with counsel before signing any employer documentation at the commencement of employment or following termination therefrom. The cost of such review can be relatively minor in comparison to the value of the claim(s) preserved or litigation expense avoided.
Where an employer has changed the terms of employment without notice to or without consent from the employee, then the employee may be able to resign from such employment and pursue common-law entitlements (see Constructive Dismissal). The law of constructive dismissal in Ontario is unsettled. Employees considering resigning their employment should consult with counsel prior to doing so.
Where an employer’s conduct is discriminatory, an employee may have an additional avenue for redress prior to cessation of the employment relationship (see Discrimination in Employment). An employee who has experienced discrimination should review their employer’s policy regarding discrimination in the workplace, if any, and consult with counsel as soon as possible.
The employment relationship of unionized employees is governed by a collective agreement. The collective agreement may contain strict time limits in which employees must advise their union of an intention to challenge discipline, up to and including termination, imposed upon them by their employer. Unionized employees should report any dispute including, without limitation, workplace discipline and termination from employment in writing to their union as soon as possible in the manner required by the collective agreement. Employees who are not satisfied with the representation provided by their union may consult with counsel and should do so as soon as possible after any dispute in respect of union representation arises.
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