SMALL CLAIMS COURT: WRONGFUL DISMISSAL
Wrongful dismissal is a legal term, describing a situation in which an employee’s contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in employment law. A number of expressions are commonly used to describe situations when employment is terminated. These include “let go,” “discharged,” “dismissed,” “fired” and “permanently laid off.” The scope for wrongful dismissal varies according to the terms of the employment contract.
An employer is entitled to dismiss an employee according to the terms of the employment contract. There are oral employment contracts, and written employment contracts, and combinations of oral and written employment contracts. In Canadian common law, there is a basic distinction as to dismissals. There are dismissals with cause, and dismissals without cause. Cause is employee behaviour that constitutes a fundamental breach of the terms of the employment contract. Where cause exists, the employer can dismiss the employee without providing any notice. If no cause exists yet the employer dismisses without providing lawful notice, then the dismissal is a wrongful dismissal. A wrongful dismissal will allow the employee to claim monetary damages.
Fired for “Just Cause”
Employers can fire employees for “just cause” – without notice, or without pay instead of notice. “Just cause” usually means a good reason to fire you for:
- not performing your job duties
- doing something seriously wrong, like stealing from your employer
- using drugs or alcohol that interfere with your job performance
- ignoring a strict workplace rule
- intentionally disobeying your boss
- consistently refusing to follow a clearly defined chain of authority
- putting yourself in a conflict of interest; for example, you have started a business that directly compete with your employer
- ignoring a workplace policy, procedures, or rules
- being dishonest about something important
- being incompetent; for example, if you got a job only because you said you could repair automatic transmissions, and it turns out you cannot
Situations for Filing a Claim for Wrongful Dismissal in Small Claims Court
An employer is not required to give an employee a reason why his or her employment is being terminated. However, under the Employment Standards Act, 2000 (ESA), there are some situations where an employer cannot terminate an employee’s employment even if the employer is prepared to give proper written notice or termination pay. Wrongful dismissal may be constituted (but not limited) by the following:
- Discrimination: The employer cannot terminate employment because the employee is a certain race, nationality, religion, sex, age, or sexual orientation.
- Retaliation: An employer cannot fire an employee because the employee filed a claim of discrimination or is participating in an investigation for discrimination.
- Employee exercising a right under the ESA or asking questions about the ESA
- Employee’s refusal to commit an illegal act: An employer is not permitted to fire an employee because the employee refuses to commit an act that is illegal.
- Employee’s refusal to work in excess of the daily or weekly hours of work maximums
- Taking a leave of absence specified in the ESA more often then employer considers “reasonable”
- Employer not following own termination procedures: Often, the employee company policy outlines a procedure that must be followed before an employee is fired. If the employer fires an employee without following this procedure, the employee may have a claim for wrongful dismissal
- Employer harasses or abuses an employee
- Employer gives an employee an ultimatum to “quit or be fired”
Under the Employment Standards Act, 2000 (ESA), certain employees are not entitled to notice of termination or termination pay. Examples include but not limited to the following:
- employees who are guilty of willful misconduct, disobedience, or willful neglect of duty that is not trivial and has not been condoned by the employer
- employees on temporary layoff
- employees who refuse an offer of reasonable alternative employment
- employees who have been employed less than three months
To file a claim for Wrongful Dismissal with the Ministry of Labour or with Small Claims Court?
If you were wrongfully dismissed you have two options:
- to sue your employer in Small Claims Court
- file a claim with the Ministry of Labour of Ontario
You cannot sue your employer for wrongful dismissal and have a claim for termination or severance pay investigated by the Ministry of Labour of Ontario for the same termination or severance. You have to choose one procedure or the other.
Written Notice of Termination
Under the Employment Standards Act, 2000 (ESA):
- employer can terminate the employment of an employee who has been employed continuously for three months or more if the employer has given the employee proper written notice of termination and the notice period has expired;
- employer can terminate the employment of an employee without written notice or with less notice than is required if the employer pays termination pay to the employee.
When an employee is terminated, the written notice required under the ESA is generally determined by how long someone has been employed by an employer. The following table specifies the periods of statutory notice required:
|Length of Employment||Notice Required|
|Less than 3 months||None|
|3 months but less than 1 year||1 week|
|1 year but less than 3 years||2 weeks|
|3 years but less than 4 years||3 weeks|
|4 years but less than 5 years||4 weeks|
|5 years but less than 6 years||5 weeks|
|6 years but less than 7 years||6 weeks|
|7 years but less than 8 years||7 weeks|
|8 years or more||8 weeks|
During the statutory notice period, an employer must:
- not reduce the employee’s wage rate or alter a term or condition of employment;
- continue to make whatever contributions would be required to maintain the employee’s benefits plans; and
- pay the employee the wages he or she is entitled to, which cannot be less than the employee’s regular wages for a regular work week each week.
An employee who does not receive the written notice required under the ESA must be given termination pay in lieu of notice. Termination pay is a lump sum payment equal to the regular wages for a regular work week that an employee would otherwise have been entitled to during the written notice period. An employee earns vacation pay on his or her termination pay. Employers must also continue to make whatever contributions would be required to maintain the benefits the employee would have been entitled to had he or she continued to be employed through the notice period.
Extending Time Limits
Although the limitations on recovery of wages and filing a claim are set out in the legislation and mandatory, it may be possible to make a claim that would otherwise be outside the applicable time limit if:
- an employee has been misled as to his or her entitlements under the ESA by his or her employer and for that reason delayed in filing his or her claim
- the employee took prompt steps to file a claim after he or she found out that what the employer said about the ESA entitlement was inaccurate
Wrongful Dismissal Related Proceedings in Small Claims Court
You might want to file a claim for Wrongful Dismissal related matters in Small Claims Court if the damages you will request are not more than $25,000. The number of steps in a Small Claims Court proceedings varies from case to case.
Time Limits: There may be a time limit on how long you can wait before making a claim in Small Claims Court, which is set out in the Limitations Act. Under the law, the time you have to sue may run out. The deadlines vary depending on the circumstances of the case, and the type of case or claim. Check the time limits for your type of case. If you aren’t sure about whether you are still in time to make a claim, talk to CP Paralegal Services.
The following steps will have to be taken for your Wrongful Dismissal related case in Small Claims Court:
- Completing the Plaintiff’s Claim form: you will be required to write in the plaintiff’s claim form a short, clear summary of the events that took place and the reasons you think you are entitled to judgment against the defendant.
- Deciding which Small Claims Court office to go to
- Preparing all documents and evidences that can support your case
- Filing the claim
- Paying Small Claims Court fees
- Serving the Plaintiff’s Claim after you have filed the claim with the court: you must prove that the defendant was properly served with the claim. You do this by filing an Affidavit of Service form.
If you have filed a claim and the defendant has not filed a Defence within 20 days, you can ask the court clerk to note the defendant in default. You do this by filing a Request to Clerk form. When a defendant has been noted in default you can ask the court to order them to pay money to you. This can be done by:
- Asking the court clerk to sign default judgment for a specified sum of money for that you must fill out and file a Default Judgment form; or
- Asking a judge to order default judgment. To do this, you file a Notice of Motion and Supporting Affidavit form. Explain the facts supporting your motion.
If it is a defended small court procedure, both parties should go for a settlement conference – a meeting with the parties and a judge to try to find an answer to the case that all parties can agree to. It must be held no later than 90 days after the first Defence is filed. There is a special rule for claims that are less than $2,500. The parties can agree to have a judge decide the case at the settlement conference. To agree to this, the parties must fill out a Consent form. The judge would decide the case at the settlement conference only if the parties could not reach a settlement. If the judge decides the case at the settlement conference, the case ends and there is no trial. At the trial each party tells their side of the story and the judge makes a decision.
What You Need to Consider BEFORE making Wrongful Dismissal claim in Small Claims Court:
- Ask yourself if a lawsuit that you are going to start will be worth it.
- You will need the correct legal name of the person or business and a current residential or business address.
- Information you need to have to support your Small Claims Court case: You will have to prove your case. Consider what witnesses and/or documents you have to support you: any written evidence, copies of documents, photographs and other that you intend to use to support your claim must be attached to the Plaintiff’s Claim form.
- Time you have to spend: Can you take days off at work to file your claim, deliver documents, and attend in court for a trial? Are you willing to spend hours and hours for: 1) researching all guides on filing your claim; 2) researching all applicable Small Claims Court procedures and steps; 3) visiting Law Help Ontario at Small Claims Court – Pro Bono Law Ontario Duty Counsel are free lawyers that offer limited services to the public at the Toronto Small Claims Court; or 4) reading legislation on-line, for example the Limitations Act?
- Consider other options to resolve the issue: To keep your costs low, you might want to try to reach an agreement out of court. This is called settlement. You may consider mediation, which is a less formal method of resolving a dispute through a neutral third party. Mediation can be less time-consuming, more flexible, and less expensive than proceeding in court. It can also help you find your own solution to the dispute and preserve your relationship with the person/business. CP Paralegal Services is always ready to provide you with mediation services.
- Consider having help from CP Paralegal Services: keep in mind, court staff cannot provide you with legal advice or help you to complete all necessary forms. Do not relay on information from relatives and friends, unless they are lawyers or paralegals.
How CP Paralegal Services Can Help You with Wrongful Dismissal Related Case in Small Claims Court
The list of reasons to make a claim for Wrongful Dismissal related matter in Small Claims Court can be endless. Although, you do not need a lawyer or paralegal when you go to Small Claims Court, to have a knowledgeable and experienced party to defend your case is a good idea. Remember, CP Paralegal Services is always ready to help you with your Wrongful Dismissal related matter. We think that the information above that we have gathered especially for you, has assured you that dealing with Small Claims Court claim is complicated and often is overwhelming even for professionals.
There are 3 reasons why you may consider asking CP Paralegal Services for assistance:
- At CP Paralegal Servicess, we have experience and knowledge; we know how to deal with your Wrongful Dismissal related case in Small Claims Court.
- CP Paralegal Services will develop the best possible strategy of your defence.
- We make sure that all evidences are well-organized for your Wrongful Dismissal related case and all time limits are considered.
Do not make a mistake! Save your time, money and nerves!
Let CP Paralegal Services do their job while you are doing yours!
Do not forget that the other party is able to respond to your claim and may give evidence that will affect the judge’s view of your Wrongful Dismissal related case. The particular details and proceedings for Wrongful Dismissal related cases are very technical, tricky and complicated and, more likely, you will need professional assistance.