Wrongful dismissal 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:
In Quirola v Xerox, Justice Pitt wrote of wrongful dismissal as follows:
"The word wrongful in employment law has been used to define unjustified dismissal or in other words dismissal without cause."
The author of the doctrinal text Wrongful Dismissal, Canadian author David Harris, refers to it obliquely as:
"... the unlawful termination of the contract of employment".
Justice Cote of the Alberta Court of Appeal, in Merrill Lynch Canada Inc. v. Soost, suggests this overly simplistic1 perspective of the law:
"We speak of wrongful dismissal, or damages for that. But there is no such thing there as wrongful dismissal (apart from federal legislation). Under (a contract of employment for an indefinite period) ..., either side may validly end the contract at any time. The employee neither has tenure, nor is indentured. The employee and the employer both have the right to end the contract, and ending it is not a breach of contract, nor a tort.
"There is no right to be allowed to resign instead of being dismissed.
"And we speak of reasonable notice. But all that need be reasonable is the length of the notice. The dismissal (or resignation) need not be reasonable; it may be whimsical, or inexplicable.
"No cause whatever is needed for the employee to resign or for the employer to dismiss, and such resignation or dismissal cannot be legally upset (unless a collective agreement or certain federal legislation applies).
"However, it is implied in the contract that the party terminating the contract without cause will give notice of reasonable length. All that need be reasonable is the amount of time which it affords. So an employer wishing to dismiss an employee without cause must either give long enough advance notice, or pay salary corresponding to that period of time."
Upon ending an employment contract, the common law or employment standards statute holds an employer to give an employee notice in terms of weeks or months in advance of termination. Alternatively, the employer may wish to see the employee leave the work premises immediately in which event the employer would extend severance pay, pay in lieu of notice.
Here is how it typically plays out:
- On occasion, an employer, intentionally or mistakenly, terminates an employee alleging just cause such as egregious work-related conduct of the employee. In that context, the employer exercises his right to summarily dismiss the employee - without notice or severance pay.
- The employee who feels he was dismissed without just cause then alleges wrongful dismissal: that he or she ought to have received either reasonable notice of termination or severance pay in lieu of notice, in the absence of which he or she alleges to have been wrongfully dismissed and entitled to damages equal to the notice period or equivalent severance pay so alleged.
Employees do not have a right to a job for life (see Legal Definition of Employment At Will), and can be dismissed for economic or performance reasons but they cannot be dismissed capriciously without reasonable notice or summarily upon just cause.
All employment implies an employment contract, which may be supplemented by labor or employment standards legislation. Either could provide for certain procedures to be followed, failing which any firing is a wrongful dismissal and for which the employee could ask a court for damages against the employer.
Can also be referred to as wrongful termination, wrongful discharge or unfair dismissal.
- Duhaime, Lloyd, Wrongful Dismissal In Canada.
- Harris, David, Wrongful Dismissal (Toronto: Thomson-Carswell, 2011), page 1-1.
- Merrill Lynch Canada Inc. v. Soost, 2010 ABCA 251. NOTE 1: An overly simplistic perspective not likely to gain much support since, for example, it ignores dismissals for union involvement or for the employee's refusal to break the law.
- Quirola v. Xerox Canada Inc. 16 CCEL (2d) 235 (1996, ONT)