Wrongful dismissal does not mean what you think it means.
❌ Wrongful dismissal does not mean that an employee was wrong to fire someone.
✅ Wrongful dismissal means an employee was not provided with enough reasonable 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.
Reasonable notice can take the form of advanced working notice of an upcoming termination or pay in lieu of such warning, which is usually called severance.
Non-unionized employees can be fired anytime and for any reason unless they have a contract that says otherwise, which is rare. Generally, the only job-protection right an employee has in this country is the right to reasonable notice before he or she is fired.
Accordingly, it is only a “wrongful” dismissal if an employer fires an employee without enough reasonable notice.
It is therefore not a wrongful dismissal if an employer fires an employee for a reason the employee doesn’t agree with, including by these common concerns I receive from callers:
- Because the employee showed up late
- Because the employee got into an argument with their boss
- Because the employee was “cancelled”
- Because the employee asked for a raise
- Because the employee was unliked in the office
- Because of something the employee did not do
- Because of social media posts
- Because of something the employee did outside of work
- Because the employee missed a day of work
- Because of filing an HR complaint about someone at work (unless it was a Human Rights Code ground concern)
- Because the employee refused to work an off day
- Because the employee did not respond to an email or phone call
- Because of a customer complaint
- Because of the employee’s politics (‘Free Speech’ is a concept that only applies to government actions, not private workplaces)
- Because of just one act of misconduct, and even if the employer has no proof of such misconduct
- Because of personality conflicts
- Because the employee gave notice of his or her resignation
- Because an employee failed a background check
- Because of ANY reason! (except discrimination)
In summary, an employer can dismiss an employee for about any reason and it is not a wrongful dismissal unless, and only unless, the employee fired the employee without giving them enough notice.
However, it should be noted in this article that employers have some constraints regarding who they can fire. Although employers are mostly free to fire anyone for any reason or no reason at all, employers are not allowed to fire anyone for a discriminatory reason.
The Law of Wrongful Dismissal
Under common law in Canada, employers have an implied duty to give employees reasonable notice of termination of an employment relationship unless there is “just cause”. Where the notice provided is unreasonable, the dismissal is said to be “wrongful” (eText on Wrongful Dismissal and Employment Law, 2012 CanLIIDocs 1).
The basic criteria for determining whether the notice given to a fired employee is “reasonable” are well-known and include factors such as:
- the character of the employee’s employment;
- the length of the employee’s service;
- the employee’s age; and
- the employee’s prospects for future employment.
Contrary to popular opinion, notice is not determined by the Employment Standards Act in most cases. The Employment Standards Act sets out only the minimum amount of notice an employee should receive and an employee has to have a valid contract that says he or she gets minimum Employment Standards Act notice only for it to apply. However, not every employee has such a contract and, in any event, many older employment contracts which exist today are likely invalid because they contain clauses that were recently declared void.
We have an article to determine 🔗 how much 🔗 reasonable notice an employee is generally entitled to. Alternatively, call our law firm for a free consultation to determine how much notice is reasonable in any given circumstance in Ontario.
📢 To recap: Employees can be fired for basically any reason so long as it is not discriminatory. It is not a “wrongful dismissal” just because the termination was unfair or arbitrary. Rather, it is only a wrongful dismissal if an employee is fired without enough reasonable notice. To that effect, an employee can’t sue because they don’t agree with a termination just because it was unfair or arbitrary. An employee can generally only sue for wrongful dismissal to recoup additional notice (or pay in lieu, a.k.a. severance) if their employer failed to give them enough notice. Employees can’t sue for hurt feelings or because of a suspected unjust decision to terminate.
Jeff is an employment lawyer in Toronto. He is the Principal of the Dutton Employment Law Group at Monkhouse Law. Jeff is a frequent lecturer on employment law and is the author of an employment law textbook and various trade journal articles.