Can someone claim wrongful dismissal if they are terminated from a long-term position where there have been gaps in employment? What happens if you have been dismissed from a job and not given appropriate notice for the full length of service? Many employers would like to think that a break in service wipes the slate clean and employees lose their previous entitlements gained from years of service. Thankfully, the courts tend to rule in favour of the employee when the break in service is relatively short compared to the entire length of employment. This can make a substantial difference in damages for notice, vacation pay, benefits and other compensation.

Wrongful Dismissal: Does it Matter if You Leave Voluntarily?

Many wrongful dismissal claims which involve ‘gaps in service’ are where the employee left of their own volition, sometimes to pursue work elsewhere. Whether they asked for their old job back or were pursued to return by the employer can factor in the courts calculation of length of service. However, leaving employment voluntarily for a short period of time seems to matter little. They did return to and were re-hired by their employer so obviously; their services and experience were welcomed and needed. Take a look at the cases below where the courts ruled in favour of the employee:

• Wrongful dismissal Case #1 - between a regional manager and the food services company she was employed by for a number of years. Her first stretch of employment lasted 5 years, when she voluntarily left to start her own business. Roughly a year later, she returned to her previous employer and continued working in a similar position until she was terminated 3 years later.

• Wrongful dismissal Case #2 - a long-term employee voluntarily left his position at a Canadian food company for a period of 8 months. The company asked him to return and offered him holiday pay as incentive. The pay was calculated on the employee’s full length of service, ignored his gap in employment and was on scale with that of a senior member of staff.

• Wrongful dismissal Case #3 - an employee left his long-term job at a local construction company for a period of 3.5 years, yet the courts ignored this substantial gap when calculating the total length of service to determine appropriate notice damages.

• Wrongful dismissal Case #4 - half way through a 9 year stretch of employment, an employee voluntarily left for a period of 9 months and returned to her job occupying a more senior position. Once again, the courts ignored the gap and awarded the employee 12 months’ notice for her entire 9 years of employment.

View other successful Wrongful Termination Cases

Wrongful Dismissal: How do the Courts Determine Length of Service?

In each of the above examples, the courts decided that the total length of employment was all inclusive, regardless of the interruption or gap in service. However, these decisions were also based on additional evidence regarding length of the earlier stretch of employment and the manner of the employee’s return. Factors such as employers requesting their return, offering bonus incentives or promotions, the type of work or position the employee returned to and so forth can affect the court’s calculation of total length of service.

What are you truly entitled to? If you would like to learn more about wrongful dismissal and breaks in service, please contact Wrongful Dismissal Lawyer, Bob Yeager.