Fired for no good reason: a legal primer on wrongful dismissal for Ontario non-union employees
The law in Ontario is pretty harsh on employees who have been fired. For the most part, Ontario employers are at liberty to fire an employee for almost any reason, or even for no reason at all. In legal terms, being fired for no good reason is called being “dismissed without cause”.
Exceptions to employers’ discretion
However, an employer’s power to dismiss without cause isn’t unlimited. The most obvious exception to that power is that employers are not free to fire you by reason of your ethnicity, colour, gender identity or expression, sex, sexual orientation, religion, disability, marital status, family status, age, race, place of origin, and citizenship. Firing you for any of those reasons, explicitly, covertly, or even unintentionally, amounts to discrimination, and it is prohibited by the Ontario Human Rights Code.
There are other exceptions to an employer’s discretion. A less common example for non-union employees is where being fired without cause is prohibited by your employment contract. A somewhat more common exception is where the dismissal amounts to a reprisal for trying to enforce or inquire about rights under the Employment Standards Act (ESA), the Occupational Health and Safety Act (OHSA), or the Labour Relations Act (LRA). Examples of reprisal prohibited by those acts are: where you were fired because you asked for back-wages (ESA); because you reported a workplace injury or harassment (OHSA); or because you were involved in organizing a union (LRA). If you were fired for any of those reasons, you may be able to get your job back, and you may be entitled to some financial compensation for wages you should have earned while you weren’t working.
When the exceptions don’t apply…
If none of these exceptions apply in your case, then your only other remedy may be a lawsuit for “wrongful dismissal”. Wrongful dismissal is a term of law art (like constructive dismissal). What is ‘wrong’ about wrongful dismissal is not so much that you were fired, but more that your employer didn’t give you enough notice beforehand.
Entitlement to ‘reasonable notice’
In many cases, the law requires your employer to notify you several weeks or months in advance of your last day – the day your dismissal will be effective. If your employer doesn’t give you enough or any of that advance notice – known as ‘reasonable notice’ in law – then it has to pay you what you would have earned, including wages, tips, bonuses, and benefits, during that entire period.
The major exception to an employer’s duty to give notice is when it has ‘just cause’ to fire you. ‘Just cause’ means that you engaged in workplace misconduct (or a course of misconduct) that was so serious that it severed the legal employment relationship. When an employer has just cause to fire you, then you aren’t entitled to reasonable notice.
If you are entitled to reasonable notice, how much notice is reasonable?
It all depends. Firstly, it depends on your contract. For example, if your contract says clearly that you only get the statutory minimum (generally about 1 week per year of employment, up to 8 weeks in Ontario), then that is likely all you can get, unless a clever lawyer (me or Miriam) can find another basis for invalidating your written contract …
If you’re on a fixed-term contract, or if you’re a seasonal employee, then you may be entitled to a notice period that brings you to the end of the contract term or season (there are exceptions to this as well).
If, however, your contract doesn’t stipulate a reasonable notice period, and you are a permanent, non-union employee, then your entitlement to notice will likely be around 2 to 6 weeks per year of employment. That entitlement can shift considerably depending on other factors such as your age, your position, your former responsibilities, and even the general state of the labour market in your area.
To determine whether you were wrongfully dismissed and whether you are entitled to compensation, you’ll have to speak with a lawyer or paralegal. But don’t be put off by the perceived expense; most legal professionals will be able to tell you fairly quickly, and for free, whether your case is worth a paid consultation or not. And some lawyers, ourselves included, are now able to offer highly efficient legal services using innovative technology and business practices, which keep legal fees reasonable and predictable.
This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.