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What is a Wrongful Dismissal Claim? 

While every employment relationship must come to an end, not all end in the same way. The relationship’s end can come by resignation, retirement, or the most dreaded option: termination.

Types of Termination

Termination (also called “dismissal” or being “fired”) takes place when an employer ends the employment relationship unilaterally, without the prior agreement of the employee. Terminations largely fall into two categories: “with-cause terminations”, which do not require notice, and “without-cause terminations”, which require proper notice to be given.

With-Cause Terminations:

In a with-cause termination, the employer terminates the employee because of certain conduct of the employee such as tardiness, insubordination, or even more extreme conduct like harassment. Circumstances that can serve as a valid cause for termination in one case may not constitute valid cause for termination in another. However, terminations for cause allow the employer to terminate the employment relationship immediately, without prior notice to the employee.

Without-Cause Terminations:

In a without-cause termination, the employer ends the employment relationship for reasons that are not valid causes for termination. Employers are generally free to end the employment relationship in this way, subject to a requirement to give sufficient notice of this termination to the employee. The sufficient notice is required to help the soon-to-be ex-employee find some alternate, comparable employment.

Severance and Pay-in-Lieu of Notice:

Some employers also have concerns about allowing an employee to continue to work for them after the employee has been provided with notice of termination, fearing poor work product or a poor attitude. In these cases, employers can instead provide the terminated employee with severance, or “pay-in-lieu of notice”, whereby the employer pays the employee a lump sum payment equal to the wages the employee would have earned if the employee had continued to work for the duration of the notice period.

Determining the Notice Period:

This requirement to provide sufficient notice begs the question: how much notice is required?

As with almost any legal question, the answer is: “It depends”.

At the most basic level, an employee that is terminated without cause must be given notice according to requirements in law (also called “statutory minimums”). In Alberta, the statutory minimum notice is stated in section 56 of the Employment Standards Code, RSA 2000, c E-9, and is based solely on the length of time that the employee was employed by the employer prior to the termination. For example, an employee who has been employed by an employer for a length of time between 4 to 6 years is entitled to a minimum of 4 weeks of notice before termination (though this is subject to change as a result of amendments to the Employment Standards Code).

The notice requirement is more complicated than these statutory minimums however, as employees can sometimes be entitled to common law reasonable notice periods, which can be significantly greater than the reasonable notice provided by the Employment Standards Code. This common law notice period is determined by the courts on a case-by-case basis and is based on more than just the length of employment, taking into account several other factors including the age of the employee at termination and the kind of position the employee held.

Considerations Under the Alberta Human Rights Act:

The Alberta Human Rights Act, RSA 2000, c A-25.5, also must be considered in any termination so as to ensure that the termination is not for any discriminatory reason. The analysis required for discrimination and complaints under the Alberta Human Rights Act is complex however and will be discussed in more detail in another post.

Complex Legal Matters:

Determining whether a termination is with-cause, without-cause, or discriminatory, as well as determining the notice periods which may be required, are complex legal matters which require research by your Employment Law Lawyer into the original employment contract, the employee and employer’s circumstances, the law in your area and industry, and the previous decisions of courts and tribunals.

Seeking Legal Assistance:

If you are an employer with questions about how to minimize your legal risk when terminating an employee, or if you are an employee who thinks that you may have been terminated improperly, Main Street Law LLP’s Business Law Lawyers and Employment Law Lawyers in Spruce Grove, Edmonton, and/or Drayton Valley can help answer your questions and help guide you to the best legal solutions for your circumstances. Please contact any of our Business Law Lawyers or Employment Lawyers in Spruce Grove, Edmonton, or Drayton Valley to schedule your initial consultation.

Please be advised that this article was prepared by Richard Copeland, Business Law Lawyer and Employment Lawyer with Main Street Law LLP in Spruce Grove in May of 2023. This article is intended as a general overview and general information on a legal subject, as the law exists at the time of writing, and is not intended to be legal advice. Often the specific facts of your legal matter may change or impact the applicability of this information. For legal advice related specifically to the facts of your concern, please consult with any of the Business Law Lawyers or Employment Lawyers at Main Street Law LLP in either Spruce Grove, Edmonton, or Drayton Valley

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