Employees can sue their employer for various wrongs, most notably:
- Wrongful dismissal
- Unpaid wages
- Human rights violations
- Traditional torts such as assault, battery and intentional infliction of emotional distress, breach of privacy, defamation, inducing breach of contract and inconvenience
- Extraordinary damages such as punitive damages and bad faith damages
Generally, employers are no different than any other kind of person (corporations are persons) and they can be sued in all the same ways anyone else can be sued.
However, regarding personal injury, generally, an employee cannot sue their employer and instead must proceed to make a claim with WSIB after an injury at work. Read this blog post for more information on personal injury and work.
For all the other kinds of ways an employee can sue their employer, keep reading below.
Wrongful dismissal is when an employee was not provided with enough notice of their termination when they were fired. In other words, wrongful dismissal is when an employee was not provided sufficient severance when they were let go.
When someone sues an employer for wrongful dismissal, they are suing for more severance.
When someone is owed unpaid wages, unpaid overtime, unpaid vacation pay, an unpaid bonus or unpaid commissions they can sue their employer for these allegations based on breach of contract. However, particularly in the case of unpaid wages, unpaid overtime, and unpaid vacation pay, on their own, employees should consider filing a claim with the Ministry of Labour which can recoup these unpaid monies faster and without the expense of a lawyer.
Human Rights violations
Discrimination at work is illegal and employees can sue in the civil courts or make a claim in the Human Rights Tribunal if they are discriminated against by their employer or colleagues.
Discrimination means prejudicial treatment of an employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
A tort is an act or omission that gives rise to harm to another and amounts to a civil wrong for which courts impose liability.
There are various torts applicable in the employment law context. For example, an employee can sue her employer for battery if she is sexually assaulted by her manager; she can sue a former employer if that former employer interferes with her new employment (inducing breach of contract) and she can sue her boss for surreptitiously accessing her private information.
Many individuals want to know, can they sue their employer for emotional distress? The answer is yes, but it is relatively rare. “It’s a pretty high standard to meet. The employee would have to prove that the offending employer or colleague engaged in flagrant or outrageous conduct that was calculated to produce harm” and resulted in “visible and provable illness (source).”
Many individuals also want to know, can they sue their employer for false allegations or defamation? The answer is yes, but in most cases, the employer will have a solid defense so long as the employer’s statements were honestly held and not motivated by malice.
Employees can sue for extraordinary damages related to the way their employment was terminated if they were fired, including damages for bad faith (also known as aggravated damages, Honda damages, or Wallace damages). For example, if an employer alleged just cause without any justification just to get out of paying the employee a large severance, the employee could sue the employer for severance and damages for bad faith termination.
See all the different kinds of employment law remedies here.
So, Can I Sue My Employer?
You can sue your employer for anything. However, to win in court you have to narrow your claim down to a recognized wrong like the ones described above and you must prove the necessary elements of the wrong applicable in your case. Still, you had better consider the risks of losing. If you lose, you will owe your own legal fees and your employer’s legal fees, which will be substantial. Always call an employment lawyer to consider your case before you make any decision about your legal rights at work.
Jeff is a lawyer in Toronto who works for a technology startup. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles. Jeff is interested in Canadian business, technology and law, and this blog is his platform to share his views and tips in those areas.