Employment Law
Constructive DismissalOur employment is often more than a means to an income. It is often a significant feature that contributes to who we are and many people measure success by their work life accomplishments. This is why the loss of employment can be devastating.
The common law, which is really Judge-made law, treats employment as a contract. The vast majority of employment contracts are not in writing but are contracts nonetheless. The terms are usually recognizable such as the nature of the work and the pay for that work. The common law also imposes a term in everyone’s contract of employment which precludes an employer from terminating an employee without giving the employee reasonable notice or pay in lieu of reasonable notice. There are exceptions to that rule, however. The principal exception is that where an employer has just cause for termination, reasonable notice is not required to be given. What amounts to “cause” is difficult to lay out. The employer is required to prove cause and in the normal course it amounts to a fundamental breakdown of the employment relationship.
A second exception to the obligation to provide common law reasonable notice is where the parties enter into a clearly-worded contract (in writing) that demonstrates that the employee agreed to forego reasonable notice and agreed to accept only the statutory minimal notice period set out in the Employment Standards Act.
The law is very complex. Each case is unique and requires investigation, assessment and an understanding of the factors that gave rise to the dismissal. As such, it is important for both employees and employers to obtain proper legal advice in order to know their rights and obligations and make informed decisions.
The employment lawyers at Waterous are experienced in advising both employers and employees and can advise as to the rights and obligations of each respective party.
