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What is Termination Without Cause?
An employee is being terminated for reasons that are not related to misconduct.
What is Termination with Working Notice?
Give the employee notice of termination. Employee works through that period “working notice”
What is Termination with Payment in Lieu of Notice?
The termination takes effect immediately and the employee is paid for the weeks of notice required.
What is Termination For Cause?
The employee’s conduct is so unacceptable that it seriously impacts on the organization and gives rise to a breakdown in the employee relationship.
What is Wrongful Dismissal?
- Is a legal claim made before the courts that the length of notice (or payment in lieu of notice) given to the employee when s/he was terminated from employment was inadequate.
- **A court cannot reinstate the employee to his/her position but can only provide damages to the employee.
In Termination Without Cause, what are some factors looked at when trying to determine reasonable notice?
- Is there an express provision regarding termination in the employment contract?
- Observe minimum statutory requirements of the ESA (termination pay & severance pay if applicable)
- Courts examine entitlements to reasonable notice based on individual circumstances of the case and various factors such as:
- Length of service
- Education, training, qualifications
- Position with company
- Likelihood of securing comparable work
- Whether the employee was actively recruited or induced
What does an Employee's Duty to Mitigate Damages refer to?
- Even if wrongfully terminated, an employee has a legal duty to mitigate his/her damages (minimize losses)
- The employee is required to make reasonable efforts to secure comparable employment.
- It is the employer’s responsibility to prove the former employee’s failure to mitigate
- Show work was available in his/her field for someone with his/her qualifications if the employee had done a thorough job search
- IMPORTANCE: Income earned during the notice period, in excess of the statutory minimums, will be deducted from any damages for reasonable notice.
Is it acceptable to dismiss (fire) an employee in any way that you wish?
- An inappropriate manner of dismissal on the part of the employer could result in damages paid to the employee if the employee can show that he/she suffered distress as a result of the employer’s bad faith conduct.
- Lack of fair dealing
- Message - the way employees are dismissed is as important as the fact of their dismissal. So, don’t play hardball with employees when dismissing them
Can an employer change job requirements (terms of employment) after an employee has been already working?
Once an employment contract has been formed (written or not) the employer does not have the right to unilaterally change a term of the contract without obtaining consent of the employee.