Posted by on May 9, 2016 in Blog | 0 comments

Wrongful dismissals constitute the bulk of employment law practice in Ontario. Wrongful dismissal or wrongful termination occurs when the employer terminates an employee in ways which are contradicting to legislation, but more often, they are contracting to the established common law practices. Employment Standards Act dictates the minimum requirements governing employment relations, but employers are often unaware that there are common law requirements as well. Beyond the legislation While the Employment Standards Act mandates one week of notice for termination per one year of service up to eight weeks of notice, or payment in lei of such notice, common law requirements differ greatly. The main idea behind common law requirements as compared to legislation mandates is that common law recognizes that employers are not obligated to hire indefinite term employees forever, but where dismissal occurs without cause, employees are entitled to a reasonable amount of time to secure other jobs, or payment in lieu of such time. This principal is clearly stated in Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986 In Canada, it has been established since at least 1936 that employment contracts for an indefinite period require the employer, absent express contractual language to the contrary, to give reasonable notice of an intention to terminate the contract if the dismissal is without cause… The large contribution to wrongful termination was made by Bardal v. Globe and Mail Ltd. This 1960 case is still used today for what has commonly become known as the Bardal factors. Bardal factors can include the following; the character of their employment their length of service their age and the availability of similar employment, having regard to their experience, training, and qualifications Subsequent case law has also interpreted these factors to look at compensation, particular customs in specific industrie, and any special circumstances surrounding the employee’s hiring. The rationale is that more specialized employees, or those with an employer for a longer period of time, will likely have more difficulty finding comparable employment. This is calculated at approximately one month of notice per year of employment, up to 2 years maximum with most low-skill or non-professional vocations capped at 1 year. Wallace...

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