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Wrongful Dismissal

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?

Wrongful Dismissal Lawyer

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.

Reasonable Notice

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:

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.

CERB Benefits, Form of Termination Notices, and Duty to Mitigate

The Alberta Court of Appeal established that CERB received by employees after termination must not be deducted from damages for wrongful dismissal.

Termination Clauses for Provincial or Federally Regulated Employees

Termination clauses in employment contracts are notoriously difficult for employers to draft, with courts requiring employers to be clear and unambiguous.

Employee Incentive Programs and Without Cause Terminations

Employers often use employee incentive programs to recognize and reward good performance and retain employees. To ensure these programs have their desired effect, many employers implement policies that govern – and carefully describe – when the employee is entitled to the incentive and when they are not. More often than not, employers use these policies to limit an employee’s entitlement to a particular incentive when the employee’s employment is terminated without cause, which has produced an appreciable amount of litigation in recent years.

Termination Clauses: Simplicity still has challenges.

This case highlights the importance of the use of a clear language in any termination clause to avoid risk.

IDENTITY FRAUD ALERT:


We have been made aware that imposters are fraudulently using the names of our lawyers to contact vulnerable individuals, aiming to acquire money, information, or other valuables. If you receive a suspicious call, email, text, or any other communication, please alert local authorities immediately. Your security is paramount to us, and we appreciate your vigilance.

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