You're fired!

Imagine this: You get your first job working at a fast food restaurant. Your manager, Phil, is 21-years-old. You and Phil don’t get along, mostly because you think that Phil is a jerk. After a few uncomfortable weeks of your personalities conflicting, Phil terminates you. You say, “You can’t fire me!” In response, Phil says, “Oh, yes I can!” Whether or not Phil knows it, he is exactly right.

Nearly everyone has a job at some point in his/her life. With that said, very few people are aware of an employer’s right to fire their employee. This week’s column is a brief introduction to the employer’s right to fire their employee (in a typical, non-unionized work environment).

Put very simply, an employer is free to fire an employee, provided there is just cause (I.e. employee misconduct), reasonable notice, or payment in lieu of that reasonable notice. If an employer does not have just cause or if there is insufficient notice/payment in lieu, the employee may have a claim for ‘wrongful dismissal’.

One of the leading cases on this matter is Bardal v. Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 from the Ontario Supreme Court.

So, what is just cause? Put simply, just cause is employee misconduct. Typical examples of just cause can include disobedience, incompetence, bad off-duty conduct, and sometimes even illness/injury.

You may be asking yourself, “Can an employer really fire an employee for being sick or injured?” Well, an employer couldn’t fire an employee (and claim just cause) simply because that employee has a cold. But, imagine a situation in which an employee is hired for a summer manual labour/landscaping position and then, two weeks later, that employee is off work from a broken bone, preventing that employee from working for several months. Obviously, it is reasonable for that employer to terminate that employee (and hire someone new).

What if the employee just made a minor mistake? Is that enough to fire them (and claim just cause)? Well, the answer is: maybe, but probably not. Dismissal can result from just cause, but there are qualifications. For instance, the punishment should be proportionate to the misconduct. So, minor error will not generally warrant dismissal. The length of the employee’s service, the employee’s track record, and the employee’s explanation of the misconduct are also relevant and impact whether or not the employee will be terminated.

So, what is reasonable notice? It is the period of time that employees are entitled to receive before they have to leave their employment (without just cause and after being given notice of dismissal). Sometimes, instead of working that time period, employees could be paid in lieu of that notice. For instance, an employee could be paid their wages for two weeks rather than actually having to stay in the workplace for those two weeks.

How much reasonable notice/payment in lieu of notice is an employee entitled to? Well, there are a couple methods. Most people are familiar with the formula based on length of service, as indicated in section 63 of the Employment Standards Act. To illustrate, the Act states that an employee is generally entitled to one week’s wages after three consecutive months of service. Another way to determine the amount of notice/payment in lieu is to refer to judge-made law (common law), in which several factors, including the age, length of service, economic circumstances, and education of the employee, are considered.

In conclusion, employment law is complicated. Also, don’t get fired.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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