The test for wrongful dismissal is a basic one: the employment must be terminated, and the notice given for the termination must be insufficient. Employers are entitled to dismiss their employees for any non-discriminatory reason, provided that they give sufficient notice of the termination. An employee who receives insufficient notice for termination without cause is wrongfully dismissed.
Is it a dismissal?
A dismissal is often a formal affair that may involve a termination meeting, working notice, some form of termination agreement, severance pay and a release, or some combination of those things. But what is required to effect dismissal is actually very simple, and the fact that any dismissal has occurred is sometimes contested. According to case law, all that is needed for the employment to end is notice that is “specific and unequivocal”, that is clearly communicated to the employee: Yeager v. R.J. Hastings Agencies Ltd., [1984] B.C.J. No. 2722. The burden is on the employer to prove that this kind of notice has been given.
According to this rule, the employer saying “Your employment will end on June 30” may be sufficient, if it is clearly communicated – and if the employee does in fact stop working on June 30. On the other hand, anything vague or uncertain may be insufficient to notify the employee that the employment will terminate, for example, “We don’t think there will be anything left for you to do in July” – the employee may successfully argue that it was not clear to him or her that the employment would terminate at the end of June, or sometime in July, or anytime at all. What’s needed is clear notice that the employment will end on a certain date in the future.
The reasoning behind this rule is logical when the rationale for notice is considered: employees need enough advance notice of termination to give them a chance to find a new job, or mitigate their damages. If it’s not clear when the damage will begin, the purpose of the notice is diminished.
Is it a wrongful dismissal?
A dismissal by itself is not always wrongful. It becomes a wrongful dismissal if the notice that is given is insufficient. It is “wrongful” because it is in breach of the express or implied terms of the contract that govern notice required for dismissal.
Whether notice is sufficient depends on the contract of employment – the provisions of the Employment Standards Act and other legislation do not automatically apply to notice. Where there is no written contract, then reasonable notice applies. This may be up to 24 months of notice. Where there is a written contract, notice will depend on the terms of the contract. If the terms of the contract give less notice than what statutory notice provides, or if there are no written terms regarding notice, then reasonable notice applies in that situation as well.
Many people think they have no contract of employment because the terms are not written down. On the contrary, an oral contract is very much a contract – and with courts on their side, the employee often prevails when an oral contract is terminated.
