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Wrong isn’t always wrongful

A worker feeling wronged doesn't mean the dismissal is unjust

By Jeffrey R. Smith

Employment standards legislation in Canada is designed to protect employees, who are usually in a position of disadvantage — most of the time, it’s the employer who’s in a position of power in the employment relationship.

There are legislated minimum requirements for reasonable notice of dismissal or equivalent pay in lieu of notice. In addition, there are common law factors — such as length of service, age, position, and the job market — that come into play that can increase the length of reasonable notice.

If an employee is dismissed and doesn’t feel she received the amount of notice or severance to which she is legally entitled — whether the employer incorrectly alleges just cause or simply fails to meet the requirement in a without-cause dismissal — she can sue for wrongful dismissal. Sometimes these actions are successful, and sometimes they aren’t. Which can bring the question: what constitutes unjust or wrongful dismissal?

Earlier this year, an employee for a federally regulated employer — subject to the Canada Labour Code for employment standards — was dismissed after two years of employment. Several months earlier, he had been promoted and signed an employment contract that stipulated if the employer terminated the employment, the employee would be entitled to the greater of two weeks’ notice in writing or the minimum notice required by the Canada Labour Code according to his length of service.

The employer provided two weeks’ pay in lieu of notice plus five days’ severance pay, as required under the code. The employee filed a complaint of unjust dismissal.

The employer called foul and tried to get the complaint thrown out. It claimed there was no reason to call the dismissal unjust and it lived up to the obligations it had under the contract’s termination provision. The arbitrator agreed, finding the employee didn’t back up his unjust dismissal complaint with any allegations of discrimination, bad faith, or reprisals in the dismissal. It was simply a termination of employment without cause and the employer fulfilled its legal requirement for notice and severance, said the adjudicator. Without specific allegations, there was no reason to find anything “unjust” about the dismissal. See Sigloy and DHL Express (Canada) Ltd., Re, 2014 CarswellNat 815 Can.Adjud.(CLC Part III)).

Obviously, there’s the potential for hard feelings when an employer has to terminate someone’s employment. Being dismissed is a pretty big thing to happen to someone, and it’s expected one can feel angry, stressed, and unwanted. But causing those feelings is hard to avoid and it doesn’t mean employers aren’t entitled to do it.

As long as employers keep it professional and follow through with their obligations established through the law and any legally-valid employment contracts in effect, any claims of wrongful or unjust dismissal will likely be quashed.

Jeffrey R. Smith

Jeffrey R. Smith is the editor of Canadian Employment Law Today, a publication that looks at workplace law from a business perspective.
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