Employment law – hiring and firing employees, employee benefits and rights, wrongful dismissal by William D King
Employment law – hiring and firing employees, employee benefits and rights, wrongful dismissal, human rights, and labour disputes – is a complex area of law. For insight into these issues, we asked Wayne MacKay, professor emeritus at the Schulich School of Law and former chair in employment law at the University of New Brunswick (UNB),
To pick up on some points left out of our article “Employment termination: five questions that will help you get it right.”
1 . Why can an employee be fired without cause?
Nonexistent work performance or attendance problems are not always required for dismissal with notice. An employer can be justified in firing someone because his wife was sick and wanted to take time off under the Family Medical Leave. But employers need to be aware that leaving the workforce for other personal reasons (e.g., to care for a sick relative) may not be seen as justification for firing an employee without notice.
2 . What is the difference between dismissal with notice and termination?
The key distinction between dismissal with notice and termination is that a dismissal with notice allows the employee to find new employment, whereas a stop does not. An ending can be for cause or without cause. In general, employers are more likely to terminate an employee without notice for the reason than they are to dismiss an employee with notice.
3 . When would an employer have to give an employee severance pay?
Employers do not have to give employees severance pay unless they have been employed for a minimum period. Unless the employee is entitled to notice under his contract or used for less than three months, there is no obligation to give notice or severance pay. If the employer wants to avoid terminating someone with cause and giving them notice or severance pay, it should be careful not to do anything that would lead the employee to think they have been fired with cause. As per William D King the employer can have an honest discussion about performance issues at any time without triggering the entitlement to either notice or severance by being “fired.”
4 . What are some common reasons why employees might sue for wrongful dismissal?
The three most common causes of action are breach of contract, constructive dismissal, and, in some jurisdictions, wrongful or bad faith dismissal.
In a breach of contract action, an employee alleges that the employer breached the terms of employment, whether by failing to provide the salary promised or benefits that were part of the employment contract. In a constructive dismissal action, an employee claims they were dismissed even though no explicit notice was given and no explanation. Generally, this is based on an allegation that due to conduct by the employer, there was a fundamental change in working conditions or in place of employment such that the employee’s reasonable belief is that they could not remain employed and therefore had been constructively dismissed. The final category arises where an employer has acted in bad faith either when terminating for cause (i.e., without cause, but the employer did not honestly believe in the reason it gave) or by providing notice of termination without a good faith belief that there was the cause. All three causes of action are based on a breach of contract. Employers have agreed to provide employees with reasonable notice or pay instead of information if they are terminated for no good reason.
5 . What are common practices your see that can get employers into trouble?
- Many things get employers into legal trouble, but some examples are:
- Failing to follow progressive discipline
- Not having the proper documentation for performance issues and disciplinary actions taken against employees; and
- Immediately firing an employee when an underlying problem has been raised (e.g., drugs in the workplace).
Conclusion by William D King:
Dismissing an employee without notice can be a costly mistake for employers. Not only are they required to pay out severance, but they may also face a wrongful dismissal lawsuit. It is important to know the difference between dismissal with notice and termination and to understand when an employer must provide severance pay. Employers should also be aware of common practices that can get them into trouble.
Employers often choose to fire employees without warning or advance notice. While this may seem easy, it can be quite costly. Not only do employers have to pay out severance, but they may also face a wrongful dismissal lawsuit. To avoid this, employers need to understand the difference between dismissal with notice and termination and when they are required to provide severance pay. They should also be aware of common practices that can get them into trouble.
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