With the exception of “just cause,” or an unlawful termination of the employment relationship, an employer must provide adequate notice of termination to an employee, or alternatively provide payment to the employee in lieu of notice. The employee would be wrongfully dismissed where the employer lacked just cause to terminate the employee and did not provide sufficient notice or payment in lieu of notice.
At common law, there are numerous factors that are considered in determining the appropriate length of the notice period in the exercise of calculating the compensation that a dismissed employee is entitled to. Since the 1960 decision of Bardal v Globe & Mail, courts have focussed on factors that include the length of a worker’s service, the age of the worker at termination, the character of the job they have lost, and availability of similar employment. In the midst of mass terminations and layoffs in this COVID19 pandemic era, the economic instability occasioned by this crisis will certainly impact how each of the factors in assessing the length of appropriate notice will be weighed and applied.
It is the onus or the responsibility of the employer to demonstrate that just cause exists so as to not deprive the dismissed employee of a legal remedy. As a general statement, to demonstrate just cause, the employee’s conduct must be considered to be sufficiently serious as to sever the employment relationship. Where an employer raises just cause as a defence, the scope of the litigation will often focus upon the factual circumstances to determine if the employer’s account is accurate, and moreover, whether the alleged misconduct by the former employee in any event was sufficiently severe to pass the muster to justify a dismissal with just cause.
In addition, an employer is not permitted to terminate an employee’s job for an unlawful reason. Where an employer terminates the employment relationship on the basis of enumerated grounds in the Human Rights Code, or to punish the employee for engaging his or her rights under the Employment Standards Act, or the Occupational Health and Safety Act, the discharged employee may be entitled to be reinstated to his or her former position in addition to other remedies.
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