Duhaime's Law Dictionary


Wrongful Discharge Definition:

The unlawful discharge (dismissal) of an employee.

Related Terms: Wrongful Dismissal, Wrongful Termination, Unfair Dismissal, Employment at Will, Dismissal

Although employment contracts are traditionally recognized by the common law as being employment at-will (the term being at the discretion of the employer), there may be contract terms between the employer and employee that suggest a specific term or even an indefinite term to the employment contract. Throughout that term, that contract may specify the conditions in which discharge (aka dismissal) may occur. If discharge occurred outside those stated reasons, the discharge is said to be a wrongful discharge thus exposing the employer to damages in tort or in breach of contract (see discussion about this below).

Wrongful discharge is one of several terms used by a variety of jusrisdictions to refer, essentially, to the same cause of action: a claim in breach of contract or in tort for the ending of an employment contract by an employer, for some unlawful reason:

dismissal noticeWrongful discharge may also occur for other reasons extrinsic to the employment contract, such as the application of employment statutes in some jurisdictions that prohibit retaliatory dismissal for certain reasons, such as, for example:

  • Generally, the exercise of constitutional or political rights;
  • The involvement in union activities (see Legal Definition of Yellow Dog Contract);
  • Absence because of jury duty; and
  • The refusal of the employee to perform tasks that are in violation of the law (eg. an employee's refusal to pollute).

The circumstances of the employer-employee relationship and the discharge will suggest wrongful discharge based in contract or in tort, two similar but distinct claims.

In Kamens v Summit, Justice Kelly of the United States District Court (Pennsylvania) noted:

"While discharge from employment may be couched both in terms of tort and contract, the two causes of action remain separate and distinct, and a claim under one theory will not necessarily imply a claim under the other."

See also Slovensky v Birmingham News, where Justice Holmes of the Court of Civil Appeals of Alabama wrote:

"The action arising from an employee's wrongful discharge is in contract and not in tort, unless the discharge is accompanied by other wrongful conduct amounting to a tort or involved a breach of a duty imposed by law."

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