Our modern life revolves around our job and we tend to invest a lot of our time and energy in it. For most of us, our professional life is very important not only because of its financial benefits but it also makes our life purposeful and productive. Now it is the time when we cannot imagine ourselves without a job and sitting idle, as our profession is also getting associated with our self-esteem and status in the society.
We are in fact living in “the age of careerists” as we value our occupation a lot and strive real hard to be proficient and well-qualified. When we lose our job due to any reason it can be a setback especially when we are dismissed from the job without any valid explanation.
Termination of employment has repercussions on many fronts from finances to future of our chosen profession. There can be instances where you are wrongfully dismissed and in such situations one has to go through a lot on psychological and emotional pain as well.
In this article we are going to put light on what is wrongful dismissal and most importantly we will get to know about the reasonable notice period.
Employers are in the position to remove their employee whenever they wish but this process is not that easy as it sounds because there are many laws made by government to protect the rights of employees in Canada. When an employee is relieved from his/her duty without providing a ‘reasonable notice’ it is called ‘wrongful dismissal’.
Before firing an employee, an employer must offer the employee a valid and reasonable contract that should have necessary rights, provisions and duties. If you haven’t got a reasonable notice and you are removed from your duties then it is high time to seek justice.
Certainly, there are situations when an employer can remove an employee legally and these are as follows:
- Providing valid reason for termination. If your employer can provide solid justification for his/her action of removing you from your position – it would be considered legal.
- Providing appropriate time and reasonable notice to an employee. It is
responsibility of an employer to give sufficient time period to an employee before termination. In case he/she fail to provide it, the situation will be considered questionable, legally.
- Terminating as per triggering some specific conditions in the employment agreement. There can be some explicit clauses in the employment agreement which regards termination but it is generally observed that the clause is ambiguous, so that employers can use it in the favour when the time comes. If you find yourself in such a tricky situation that does not trigger any clause on agreement yet you are dismissed from the job, then you should file for a wrongful dismissal claim.
- Sharing sensitive information about the organization with others. An employer can terminate your employment if you have shared sensitive information with some other parties.
- Making false claims on organization. If you have filed for a claim against the organisation you are working, then also the employer can terminate your employment.
Apart from this, an employer has no rights to remove an employee from a job, yet it is seen that many people have to face a lot of embarrassment and hassle when their job is terminated attributing to unwarranted reasons. Here they are free to file for a wrongful dismissal claim and fight for their rights.
There are some situations when an employee can’t be removed:
- During pregnancy or for taking maternity or parental leave
- Seeking information about your rights on workplace
- Demanding or asking your employer to work according to the laws
- Providing information to investigating Employment Standard officer about your employer
- Claiming your rights defined in Employment Standards Acts 2000
In order to understand Wrongful Dismissal in detail, you should also have some insight into what is Reasonable Notice first
Reasonable notice depends on situation to situation because there are many parameters that are considered for it. For example, an employee who has worked for 20 years in an organization will receive extended reasonable notice, comparing to a person who is working for 5 years. Here are factors that should be considered while deciding reasonable notice period:
- Age of an employee (capability of performing tasks with proficiency)
- Time period of work (Working time period on the current position)
- Skills of an employee with his/her assigned job (Capability of handling technology)
- Availability of similar job opportunity (Another job offer)
- Work experience (Experience in similar job positions)
Following are the factors that can make significant impact on the reasonable notice period:
- Skills sets and seniority of an employee. If the dismissed employee has right skills sets that perfectly fit for the job then the court will award longer reasonable notice as well as more compensation in case of wrongful dismissal. The court checks seniority of an employee and if the employee is highly skilled then there are great chances of securing success in the case. But if the employee is neophyte then he/she will most likely get shorter reasonable notice time period.
- Time period of service. Reasonable notice depends on the time period of service that the employee has performed in the organization. It is a very important factor that is considered for deciding reasonable notice. According to the rules of reasonable notice, an employee deserves notice according to time period of service, such as one month notice for each year of service. For example, if an employee has worked in the organization for 15 years, then he/she deserves much longer notice time as compared with an employee who has worked for 2 years.
- Age Group. An older employee deserves extended notice period as compared with younger employees, and it is a very important aspect of any reasonable notice. Most of employees that are 50 or older will find significant difficulty in finding an appropriate job comparing to young employees. That is why senior and aged people deserve longer period reasonable notice as compared with young employees.
- Similar employment availability. It is the most significant factor that affects reasonable notice. Availability of similar employment plays crucial role in reasonable notice, so loss of employment can be handled well. Time that will be required for finding new employment will definitely affect notice period that the employee should get. For example, any employee with extremely specialized skills, with limited employment options, need longer notice period because there can be replacement of technology in his/her working area. In such situations an employee will need extra time to find similar type of job.
- Miscellaneous factors. There are many other, less significant factors that can bring impact on reasonable notice, such as:
- Inducement. This condition happens when an employer or its agent contacts an individual who is already employed and puts pressure or convinces the employee to leave his/her secure job for a new job opportunity. In such situation, if the employee is terminated within a short time period, the court will most likely decide the reasonable notice period on the basis of previous job.
- False allegations. If your employer has terminated you from your job with false allegations, then you want to take help of an attorney. In such situations, the court can extend the reasonable notice time period because false allegations can also make job search really problematic.
- Non-solicitation or/and non-competition clauses. An employer may try to add non-solicitation and non-competition clauses into the employment contract so that they can control termination. Usually the court takes strict actions against such clauses. Also, employees dismissed under such circumstances are entitled to receive longer reasonable notice. It is because termination under such clause makes finding new employment very difficult.
- Pregnancy. Women who were relieved from services because of pregnancy deserve longer time notice period. Th court can increase reasonable notice time period for such termination cases.
Along with this lets find out about factors which will not influence reasonable notice period:
- Termination associated with retirement (bridging). It happens when an employee is terminated before the actual date of retirement but his contract triggers the pension or retirement benefits. There are many cases when people file cases for wrongful dismissal under such circumstances. It most likely won’t make any sort of impact on reasonable notice period.
- Loss of income because termination. Loss of job will certainly put a lot of pressure on finances of an employee, as his/her job might be sole income source. Reasonable notice can offer some compensation for an employee but he/she can’t demand for salary of remaining contract.
Crucial role of your wrongful dismissal attorney
It is observed that in most situations pertaining to wrongful dismissal, you need a helping hand of an experienced and well-qualified attorney. It is true that wrong dismissal cases are really complicated and you might have to face a lot of issues. You will certainly require legal support and services so that you can get justice for all you have to go through, and you are compensated fully in the end.
Here, we will discuss how your attorney can lay foundation of a firm and strong case:
- In sight into Employment Agreement. An good attorney is well aware of different types of employment contracts and their various clauses. If you are hiring a responsible and resourceful lawyer for your case, you will make things convenient for you while you file for a wrongful dismissal claim. Employers tend to make things conspicuous for employees, especially when it comes to an employment contract. Hence, you need an eagle eyed attorney who can find solutions for you even in most treacherous situations. In the end you will be really thankful that you have opted for services on time.
- Legalities. Legal world is full of formalities, documentation, complications and delays. If you are not well-equipped with updated procedures and legalities, you will be in this mayhem for long. To avoid such unpleasant situations, you should locate the best attorney which is available for you and is resourceful enough to make the way out of the legal rut!
- Proper filing of the case: Your attorney will help you in taking the right steps and following the apt procedure. They will represent your case on your behalf and it certainly reduces lot of your burden. You will be relieved that you don’t have to put lot of effort in the whole process. Moreover, when you know that responsible people are toiling for you day in and day out, you can indeed feel confident and optimistic about your case, which is paramount; if you really want to win.
- Gathering the evidence. If you think you can go all alone when it comes to case filing and fighting for your rights, then think again! Gathering evidence for your case can be really difficult, especially when it is about wrongful dismissal. Here, your attorney will come to your rescue and make the whole task way easier.
- Consultation and guidance. When you seek an attorney, it’s good to make sure that you are working with the one that is sync with your expectations. When you are comfortable working with people of the legal field, it will open a lot of doors for you so that you can be in the win-win situation. You can consult with your attorney to clarify your doubts, fears and confusions. This is psychologically very important as it will ensure that you don’t feel tense all the time and work towards making your case stronger and demand for rightful compensation, even in the most complicated cases.
- Payment from the compensation money. When one is filing for a wrongful dismissal claim, it is clear that the person is out of employment and there is financial strain for him/her. Here, when you seek legal services which, it is a good option to sign up with an attorney who takes charges after the case is won and you have finally received your compensation. It will help in alleviating your situations significantly. You can seek such provisions when you are proactive in locating a result-oriented and proficient lawyer for your case.