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Wrongful Dismissal

There are circumstances when an employer can immediately terminate an employee. Employers can also terminate an employee with proper notice or pay instead of notice as long as the employee is not terminated for discriminatory reasons. Otherwise termination can be considered wrongful dismissal.

In unionized workplaces termination of employees is covered by the collective agreement. Unionized employees can grieve the actions of an employer but cannot sue for wrongful dismissal.

Employers can immediately terminate a worker's employment for cause when the worker has...

  • engaged in serious misconduct, including things like sexual harassment, abusive behaviour, theft, or intoxication
  • habitually neglected their duties, or
  • wilfully disobeyed orders

When an employer does not have cause to terminate a worker, they can still terminate their employment provided that...

  • the worker is given notice as required in the circumstances, or payment in lieu of notice
  • the termination is not related to a prohibited ground, such as discrimination, or retaliation

Termination outside of these situations is considered wrongful dismissal.

What the Courts are Saying

The Ontario Court of Appeal upheld a decision that had determined that a victim of workplace sexual harassment had been wrongfully dismissed. The plaintiff was a supervisor and health and safety coordinator in a refinery. She was the only female employee in the plant. She was subjected to repeated sexual harassment in the form of inappropriate and belittling comments from the plant maintenance manager. At trial, the judge listed some examples of the behaviour complained of, including situations where the maintenance manager would...

  • stare at the plaintiff's breasts and mimic taking a snapshot
  • discuss different sexual positions
  • tell the plaintiff that she needed to get "laid" or needed a "little pounding"
  • comment on her physical attributes

During a production meeting the plaintiff raised some legitimate safety concerns about the operation of the plant. Her concerns were ignored and she was demeaned and belittled by the plant maintenance manager. She left the meeting in tears.

She then made a complaint of sexual harassment to the assistant general manager of the company. There was a cursory investigation involving discussions with the alleged harasser but she was never interviewed. Five days later she was terminated without cause.

The trial judge found that she was wrongfully dismissed and that her gender and her sexual harassment complaint were likely the most significant reasons she was terminated.

The trial judge also found that the dismissal significantly impacted the plaintiff, who suffered migraines, chest pains, sleep disturbances and nightmares. She was eventually diagnosed with a major depressive disorder and anxiety.

Employers have an obligation of good faith when terminating an employee. When they act dishonestly, unfairly or unduly insensitively, they may be liable for what is known as moral damages. In this case, the trial judge found that the termination process was "mangled", involving...

  • breach of privacy rights
  • "completely disingenuous" assurances that the plaintiff's job was not in jeopardy although the decision to terminate was already in the works
  • recruitment of co-workers to "dig up dirt" to justify her termination after the fact

The plaintiff was ultimately awarded 10 months' salary in lieu of notice of termination, $25,000 for her sexual harassment claim under the Ontario Human Rights Code, and $60,000 in moral damages for the employer's breach of good faith in the manner she was terminated.

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The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).

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