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Employment Law: Wrongful Dismissal & Termination Without Cause

By MyLegalAnswers |

The most common type of issue faced by employment lawyers is a situation in which an employee has been terminated wants to know what his or her rights are. In order to determine this, an important distinction must be made between wrongful dismissal and termination without cause.

Wrongful Dismissal
A dismissal is wrongful when an employer dismisses or terminates an employee without giving the employee notice of that termination. A dismissal is also wrongful where an employer dismisses or terminates an employee without giving notice of termination because the employer wrongfully feels that there is cause for termination.

Finally, constructive dismissal, which is a form of wrongful dismissal, occurs where an employer, without the consent or agreement of the employee, changes a fundamental and important term of employment such as wages or salary and then forces the employee to either accept this change or quit. In each of these cases an employee may be able to sue the employer for the wrongful dismissal. However, a lawyer should be consulted first.

There are a number of options available to an employee who has been wrongfully dismissed. One option is to file an employment standards claim. This option is likely the simplest and cheapest. However, the maximum amount that an employee can recover through an employment standards claim is $10,000. Thus, if an employee wishes to recover more than $10,000 from their employer, this may not be the right option for them.

A second option available to employees who have been wrongfully dismissed is to commence a civil action against their employer. This option has no limitations in regard to how much an employee can recover. However, the process of suing an employer can be rather expensive, time consuming and lengthy. Going through mediation or some other form of alternative dispute resolution can save some time and expense.

Termination Without Cause
In contrast to wrongful dismissal, termination without cause is lawful if done correctly. Termination of employment without cause occurs where an employee is terminated from their employment, not necessarily because they have done something terribly wrong to the employer, but rather because their employer, for whatever reason, has decided that the employee's services are no longer needed. The reasons for this could vary from economic reorganization to unsatisfactory work performance.

The most important point about termination without cause is that if an employee is terminated without cause, he or she is entitled to, and must receive from their employer, notice of such termination. In other words, the employer must tell the employee ahead of time that they are going to be terminated (exactly how far ahead of time will depend on the circumstances). This gives the employee time to look for other employment. If an employee is terminated without cause and is not given proper notice of the termination a wrongful dismissal has occurred. Therefore, a termination without cause can become, but is not always, a wrongful dismissal.

Editor's note: While employers do need to tell employees in advance of a termination, many choose to have the employees stop working as soon as this termination notice is given, while still paying them for that time. That is called 'pay in lieu of notice'.

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