Wrongful Dismissal - Employees Do Not Own Their Jobs

The first thought that a person has when their boss comes to them and tells them they are being let go is 'he cannot do this to me - I have been working here for x years.' Dismissal (along with divorce and death of a family member) is one of the three 'd's' that can redefine our lives. In each case something that defines us as a person within our community is being taken away from us.

However, the pragmatic reality is that employees do not own their jobs. An employer has the right to terminate any employee without cause at any time. An employer cannot terminate employment for an illegal reason (race, gender, disability, etc.) but that is just about the only limit on the employer's discretion.

That is not to say that employees do not have any remedies. Most jurisdictions have some form of labour or employment standards statute which provides for a minimum notice period based upon seniority. These statutes will also protect the employee's entitlement to recover unpaid vacation pay and expenses as well. In the event that the employer does not meet these obligations there is usually an administrative tribunal or panel where the entitlement can be enforced. There are also a few jurisdictions that protect the jobs of employees with ten or more years seniority.

However, these statutory obligations are the minimum to which an employee is entitled. In most jurisdictions there is also the concept of reasonable notice. That is the recognition that an employer has the right to terminate employment without cause but that the employee is entitled to reasonable notice of that termination in order to allow them to deal with the consequences of dismissal.

Notice of termination usually takes one of three forms: 1) working notice - where the employee is required to keep on working but is encouraged to look for alternate employment; 2) a lump sum payment equal to the notice period; or, 3) a continuation of payment of wages for the notice period with the employee not required to attend at the workplace.

The question that most employees first ask is 'how much notice am I entitled to?' That varies from employee to employee and jurisdiction to jurisdiction. Sometimes the notice entitlement is set out in the employment contract and if this is so that is the answer. However, where the employment contract does not deal with the issue then we ask the question if on signing the contract the parties had asked what the notice entitlement was how would they have answered the question? Sometimes the issue of notice is discussed, seniority, availability of similar alternate employment, specialization of employment, whether the employee moved to the job will all be factors that are taken into account in determining the notice entitlement.

The common myth is that employees are entitled to one month for each year of service. In some jurisdictions that is the sweet spot for employees with four to five years seniority. However, in many cases the entitlement, if the matter got to court, will run somewhere closer to three weeks per year. This is particular true when employees reach the upper levels of seniority where there seems to be a hesitancy to go much beyond a notice period of eighteen to 20 months for employees of exceptionally long service.

Termination of employment is a moment of high stress for employees. It is important that each employee recognizes that they have rights and that they do not do anything that would jeoporadize those rights. The laws vary from jurisdiction to jurisdiction and it is important that any employee with a question about their entitlements consult a lawyer who practices in their state or province.