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Wrongful & Constructive Dismissal Actions

WRONGFUL & CONSTRUCTIVE DISMISSAL

MacLeod Law Firm provides representation to employees who wish to commence wrongful or constructive dismissal actions against a  former employer.

For various reasons, we almost always recommend that a person try to settle the case with the employer with our help before commencing litigation. For information on negotiating a severance package, click here.

WRONGFUL DISMISSAL

In general, an employer is permitted to terminate an employee’s employment without just cause by providing the employee with notice of termination (or compensation instead of this notice.) If an employer does not provide adequate notice of termination then the employee has been wrongfully dismissed.

CONSTRUCTIVE DISMISSAL

If your employer has changed a fundamental term of your employment without your approval then you may have been constructively dismissed. Here are some examples:

A 25% cut in salary is likely a constructive dismissal however a 10% cut in salary may not be. The elimination of a bonus can be a constructive dismissal unless it is a true discretionary bonus. A reduction in one or more employee benefits can be a constructive dismissal.

Significant changes in your job duties can be a constructive dismissal unless you have agreed – usually in an employment agreement – that the employer can change your duties.

A temporary layoff is generally considered a constructive dismissal.

If you have been subjected to continuous yelling and screaming, abusive and unfair treatment then you may have been constructively dismissed.

MacLeod Law Firm has spoken to many employees who want to know whether or not they have been constructively dismissed.

LEGAL VENUES

In Ontario, an employee can bring a legal proceeding in connection with a termination in many different forums.

1. The Courts

An employee can commence an action against her former employer in court.

The Small Claims Court is for claims up to $25 000. For more information about our small claims court practice, click here

The Simplified Procedure is for claims between $25 000 and $100 000.

A normal action in the Superior Court is for claims over $100 000.

There can be significant cost consequences for bringing an action in the wrong court.

2. Administrative Tribunals

A person can file a complaint with the Ministry of Labour for claims up to $10 000 under the Employment Standards Act.

A person can file a complaint with the Human Rights Tribunal of Ontario if he or she believes prohibited discriminated under the Ontario Human Rights Code played a part in the termination.

An employee can also file claims under the Pay Equity Act, the Occupational Health & Safety Act, and the Workplace Safety and Insurance Act.

It is very important to consider the consequences of commencing a legal proceeding in the courts as opposed to an administrative tribunal. For example, if a person files a claim for termination pay under the Employment Standards Act then he or she cannot generally bring a wrongful dismissal action. Similarly, if a person claims for damages for the discrimination he or she experienced in a wrongful dismissal action then  the person cannot generally also file a human rights complaint under the Ontario Human Rights Code.

To determine whether it makes sense to commence litigation against your former employer, you should meet with MacLeod Law Firm to discuss your situation. This is called an initial consultation.

During the initial consultation, we gather the facts MacLeod Law Firm needs to provide you an informed legal opinion.

If you want to set up a consultation, click here

If you want to know what to expect if you contact us, click here

MacLeod Law Firm has been practicing labour and employment law for over 20 years. Through our offices in Toronto and Barrie we would be happy to help.

 

 

 

 

 

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