Fired. Terminated. Downsized. Transitioned. Released. Let Go.
Whatever your (former) employer wants to call it, you have lost your job. This leaves you in a vulnerable position while you rely on savings and look for another way of supporting yourself and your family. What now?
What is a Wrongful Dismissal?
If you have recently lost your job, we encourage you to obtain legal advice as soon as possible. Talking to an experienced employment lawyer will help you consider your options and decide what to do next. Our first priority is always to help you to understand your legal rights. Unionized employees will have their dismissals governed by their collective agreement and you will want to contact your union representative for further details.
In Alberta, non-union employers have the right to dismiss employees so long as they don’t violate the Employment Standards Code or the Alberta Human Rights Act. Unless your employer is alleging cause, they will need to give you reasonable notice of the dismissal or pay in lieu.
Employers in Alberta must give advance notice when dismissing employees. Employers also have the option of terminating your employment immediately and paying you an amount equal to what you would have earned during your notice period (severance). The statutory minimum notice periods are set out in the Alberta Employment Standards Code under Section 56:
- 1 week, if you have been employed for more than 90 days but less than 2 years
- 2 weeks, if you have been employed for 2 years or more but less than 4 years
- 4 weeks, if you have been employed for 4 years or more but less than 6 years
- 5 weeks, if you have been employed for 6 years or more but less than 8 years
- 6 weeks, if you have been employed for 8 years or more but less than 10 years
- 8 weeks, if you have been employed for 10 years or more.
These are only minimum notice periods. Unless there is an enforceable employment agreement in place that limits your entitlement to notice to the statutory minimum, you are also entitled to reasonable notice according to common law principles. This is an amount established by the courts through an assessment of a number of factors, including:
- Your age
- Your length of service with the employer
- The character of your employment
- Your ability to find similar employment
If you think that your employer is offering an inadequate amount of notice, contact one of our experienced lawyers to consider a wrongful dismissal claim against your former employer.
Fired With Cause vs Fired Without Cause
Employers do not need to provide notice or pay severance if they have just cause for dismissal. In order to establish just cause, there must be serious workplace infractions. Examples include:
- violence or harassment in the workplace
- repeated absenteeism without reasonable excuse
The burden for proving just cause is on the employer and does not include things like unsatisfactory work performance or occasionally being late from work unless there is a lengthy pattern of behaviour with documented warnings. If your former employer has dismissed you and is alleging just cause, our employment lawyers can help you determine whether their claims stand up to legal scrutiny.
If it looks like you were ultimately dismissed without cause, you may decide to pursue a claim for wrongful dismissal. Our employment lawyers routinely prepare and prosecute such claims.
Wrongful Dismissal – What to Do?
Consult an employment lawyer BEFORE you sign any documents.
Sometimes employers will ask you to sign a release at the time of firing or being let go. Sometimes this is packaged as a “severance” offer that the employer says they will not provide unless you sign. We strongly recommend that you obtain independent legal advice on whether the package your employer is offering is appropriate given the facts and your employment history. Advise your employer that you want to take time to review the document with legal counsel before you sign. It is in the employer’s interest to accede to this request.
Beware of the Applicable Deadlines
In Alberta, one must file a claim for wrongful dismissal within two years of being provided with termination notice.
The Duty to Mitigate
You are under an obligation to mitigate your damages by making reasonable efforts to obtain equivalent alternative employment. This means looking for a new job even while you pursue a claim against your former employer.