This article is intended to offer general advice with respect to the termination of your employment, commonly referred to as wrongful dismissal or wrongful termination. Readers should seek legal advice on particular issues that concern them.
If you have an employment law issue or question, feel free to contact us. If you have been asked to sign a release or have been offered a severance package and would like legal advice regarding your rights then please contact us by email.
What is Wrongful Dismissal? The following article provides a general overview of wrongful dismissal law in Alberta. The information provided is not applicable to unionized employees and may not apply to employees who work for a federally regulated employer.
Termination of Employment In general, an employer is permitted to terminate employment without just cause, provided they give an employee reasonable notice or compensation instead of reasonable notice. An exception to this is if an employer has violated an employee’s human rights or violated certain parts of the Employment Standards Act (i.e. failure to reinstate an employee after pregnancy leave). Employees who work for a federally regulated employer, such as a bank or airline may have a statutory protection against unjust dismissal, even if notice is given.
There is an implied term in every contract of employment that an employer will provide an employee with reasonable notice of termination. This presumption may be rebutted with a valid and enforceable termination clause (this will be expanded on below). Absent an enforceable and valid termination clause, an employer must provide an employee with reasonable advance notice of termination or payment in an amount equivalent to all salary and benefits that would have been earned by the employee during the reasonable notice period. The ‘wrongful’ in wrongful dismissal, refers to the failure of an employer to provide an employee with reasonable notice and does not refer to the dismissal itself.
A common point of contention in most wrongful dismissal disputes is usually in determining the length of the reasonable notice period and what employee benefits should be included during this period. Although permissible, it is unlikely that an employee will be given “working notice”, as many employers opt to, and prefer to provide terminated employees with compensation in lieu of actual working notice. This is largely because employers do not want to continue to have a terminated employee in their employ that may have little incentive to be productive and may hold some animosity towards them as a result of their termination. If an employee has been given working notice, the employer has an obligation to continue to employ the employee in their similar capacity and provide them with the same compensation. An employer cannot unilaterally change the employees’ roles, responsibilities, and compensation in a substantial way during the working notice period.
The Employment Standards Code only provides minimum notice periods. An employee can be entitled to a notice period beyond the statutory minimum, depending on a number of factors which the courts will consider in determining the appropriate notice period. These factors include: length of employment; training and experience required to fill the position; responsibility attached to the position; availability of equivalent alternative employment; employee’s relevant education, training and experience; the employee’s age; and if there was inducement to leave another job.
Since embarking on a lawsuit for wrongful dismissal is a voluntary exercise, there are some calculations that need to be made before you start a claim for damages for wrongful dismissal. You do not want to spend thousands of dollars chasing an illusory claim.