An experienced employment lawyer offers representation to employees who want to look into and pursue constructive or wrongful dismissal actions against their former employer. For different reasons that apply to each person, it’s always a good idea to try to settle the case, with an employment lawyer’s help, with their employer before starting litigation.

Here is some more information on constructive and wrongful dismissal, and the legal options an employee can take when this happens.

1. Constructive Dismissal

Constructive dismissal occurs when your employer changes a major and fundamental term of your employment, without your approval. Here are some examples:

  • A temporary layoff.
  • A significant cut in salary: a 25% cut in salary is usually considered a constructive dismissal, although a 10% cut might not be considered one.
  • The elimination of a bonus may qualify as a constructive dismissal unless it’s truly a discretionary bonus.
  • A reduction in one or more employee benefits.
  • Significant changes in your duties at work unless you’ve agreed that your employer can change your duties.
  • You’ve been subjected to abusive and unfair treatment, or continuous yelling and screaming.

2. Wrongful Dismissal

Generally, an employer may terminate your employment without just cause, as long as he or she gives you notice of termination, or compensation in lieu of notice. If your employer doesn’t give you adequate notice, or compensation in lieu of notice, you have been wrongfully dismissed.

3. Administrative Tribunals

In the province of Ontario, you may bring a legal proceeding in relation to a termination in some different forums. The two basic routes are via administrative tribunals and also via the courts.

If you feel you’ve been discriminated against under a prohibited area under the Ontario Human Rights Code, you can file a complaint with the Human Rights Tribunal of Ontario.

You may file a complaint with the Ministry of Labour for all claims up to $10,00 under the Employment Standards Act. You also have the option to file a claim under the Pay Equity Act, the Workplace Safety and Insurance Act, and the Occupational Health & Safety Act.

4. The Courts

You may start an action against your former employer in court:

  • If your claim is $25,000 or less, you will start the action in the small claims court.
  • If your claim is between $25,000 and $100,000, there is what is called the Simplified Procedure in the Ontario Superior Court of Justice. The purpose of the Simplified Procedure Rule is to reduce the costs of litigating claims in amounts under $100,000. This is achieved by limiting the scope of oral pre-trial discovery. Each party gets a limit of two hours for oral discovery. This results in an earlier date for trial.
  • If your claim is over $100,000, you will start in the Ontario Superior Court of Justice under the ordinary Rules. You may, however, agree with the other party to use the Simplified Procedure for claims over $100,000.

If you are going to pursue the matter in court, it is extremely important to issue the Statement of Claim before the limitation period expires. For most lawsuits in Ontario, the claim has to be issued within two years of the Plaintiff (you) hearing about the harm caused by the Defendant (your employer). There are, however, different limitation periods for different types of claims. Your employment lawyer is the best person to tell you when the limitation period will expire for your particular case.

In Toronto, all parties are required to take part in a mediation session within 180 days of the first Statement of Defence being served. If mediation doesn’t resolve the matter(s), the parties can request a settlement conference, or set the matter down for trial.