UNDERSTANDING WRONGFUL DISMISSAL AND CONSTRUCTIVE DISMISSAL
Dealing with a job loss can be overwhelming as one needs to figure out what needs to be done next. If you feel you are dealing with wrongful dismissal or wrongful termination, or even worse, a constructive dismissal, things become even more difficult. This is when you should consider reaching out to a wrongful dismissal lawyer or a constructive dismissal lawyer. The lawyer will help you determine whether you have a strong case and guide you through the process. Here is all that you need to know about wrongful dismissal.
What Is Understood As Wrongful Dismissal?
There is wrongful dismissal when the employee is dismissed or terminated by the employee without fair compensation. A termination in a Wrongful dismissal situation is usually of two types:
Termination Without Cause: In this type of wrongful dismissal case, the employee is terminated without a cause and the employer refuses to adequately compensate the employee by providing reasonable notice or payment in lieu.
Termination for Cause: In this type of wrongful dismissal case, the employee is inappropriately dismissed without just cause and fails to pay reasonable notice of termination or in lieu thereof to the employee at all.
What Is The Difference Between Constructive Dismissal And Wrongful Dismissal?
Constructive dismissal happens when a company amends an employment agreement in a substantial way without permission. Whereas, in wrongful dismissal, there is no fundamental change made to the employment contract.
Common Examples Of Constructive Dismissal And What To Do?
A constructive dismissal occurs when the employer unilaterally makes a fundamental change to the material terms and conditions of the employment contract, either by conduct or by words. The employer can make substantial changes like changes in compensation which include salary, benefits or bonuses, job responsibilities, reporting functions within the company hierarchy, working conditions, hours of work, the terms of employment, or the location of work. Even if such changes have not been made, a case of constructive dismissal can be filed even when there has been no breach of the employment term. Still, the employer’s conduct is indicative of intentions of not being bound by the contract. An example could be the conduct of the employer to make it impossible for the employee to work.
Constructive Dismissal law cases can be highly complex. Reaching out to a constructive dismissal lawyer timely is important.
A constructive dismissal lawyer can help you file a claim of constructive dismissal under common law or the Employment Standards Act (ESA). The ESA includes the common law principles for constructive dismissal. You can file a case for constructive dismissal if you have faced any of the following circumstances:
- You have been temporarily laid off, whereas the employer has no right to do so under the employment contract.
- The employer substantially alters the established job duties of the employee, and this is not allowed under the employment law.
- The employer substantially reduces the salary of the employee. Even a reduction temporarily without the consent of the employee is prohibited by employment law.
- You are getting furlough, reduced working hours, or demoted for no good reason.
How Is Wrongful Dismissal Proved?
When you’ve filed your claim for wrongful dismissal, the employer needs to prove you were provided with enough working notice or a payment in lieu of notice. In the case of a termination with cause situation, the company must show that the cause of termination is wilful misconduct during the employment.
Can The Employer Be Sued For Wrongful Dismissal If They’ve Lied About The Reason Why The Employee Was Fired?
There is a common belief that companies must provide employees with a reason for termination. The employer is not obliged to give a reason for termination if the employee has been provided with sufficient notice or payment in lieu of notice.
When an employer provides a wrong reason for termination and provides you with sufficient notice or payment in lieu of notice, it does not constitute wrongful dismissal.
Can Wrongful Dismissal Be Claimed During Probation?
An employer can fire an employee only when there is good faith determination about the employee being unsuitable for permanent employment and that the employee was given a fair and reasonable opportunity to show that they are suitable for the job. That their non-suitability is not for saving costs. If the employment contract doesn’t talk about termination without cause, or if the termination clause is considered invalid for violating the Employment Standards Act (ESA), the penalty is additional fine in the form of aggregated damage for the bad faith conduct. In such a case, the probational term is voided and the employee is entitled to a common law reasonable notice.
Reach Out To A Lawyer
If you’ve been recently let go from your job and feel it was a wrongful dismissal, or that you feel like you have been constructively dismissed, it is crucial to reach out to a lawyer. A wrongful dismissal lawyer and a constructive dismissal lawyer will help you gauge clarity about the case you have and guide you through the process.