Employers who wish to dismiss a non-union employee must give the employee proper notice and pay a fair amount in severance. If the employer can establish that the employee participated in certain types of misconduct, the company is relieved of these obligations.
Wrongful dismissal claims typically arise when employees believe their employers:
- Did not give adequate notice: in most cases this refers to the amount of time the employer will continue to pay the person’s salary (or the amount of a lump sum payment) after the employee is notified of termination, rather than the time between the date notice of intent to terminate employment is given and the date on which the employee no longer comes to work;
- Did not pay an adequate amount in severance: including failure to consider forms of compensation other than wages or salary, such as earned commissions, bonuses, pensions and stock options;
- Made unjust allegations of employee misconduct: including false claims that the employee was wilfully disobedient, habitually late or absent, dishonest, intoxicated at work, insolent or insubordinate; that the employee sexually harassed others or had a conflict of interest;
The Courts have developed a number of factors that should be considered before terminating for “Just Cause”. This includes, but is not limited to, the following:
the nature and extent of the employee’s misconduct;
- the context and surrounding circumstances, including:
- the employee’s circumstances, such as his or her seniority, role and responsibility in the business, employment history and performance, age, personal circumstances and other relevant conditions; and
- the employer’s circumstances, including the nature of the employer’s business activity, the relevant employer policies and practices, the employee’s position within the organization, the degree of trust reposed in the employee and other relevant circumstances; and
- A discernable termination date and that notice of termination was clear and unambiguous;
- a determination of whether the misconduct can be reconciled with the continuation of the employment relationship or whether it is so serious that it gives rise to a breakdown in that relationship.
Further, if an employer is wrong in alleging just cause for termination, the employee may seek other heads of damages, including reputational damages, punitive damages and mental distress. This is particularly true where the employer is acting in bad faith.