Wrongful Dismissal Explained

Generally an employer can terminate an employee at any time, unless there is an employment contract that says otherwise. If an employer lets someone go, then the employer is obliged by law to give the employee reasonable notice that there job is going to end.

“Reasonable notice” is determined by reference to the Manitoba Employment Standards Code which legislation requires that if you have worked for less than three years, then you are entitled to a notice period of two weeks. If you have worked between three years and five years, then you are entitled to four weeks notice. If you have worked for the employer between five years and ten years, then you are entitled to six weeks. And finally, if you have worked for ten years or more for the same employer, then you are entitled to eight weeks notice.

For example, if you worked for Joe’s Best Burgers for eleven years and the employer decides to terminate you, then:

1. The employer is within their right to terminate you (provided it is not contrary to an employment contract, and provided it is not for reasons of discrimination based on race, religion, gender, sexual preference, or gender identity).
2. Manitoba Employment Standards Code states that you as an employee are entitled to a notice period of eight weeks, which means that the employer must give you notice of your pending termination eight weeks before hand.
3. Most employers choose to let their employee go immediately, so in this case the employee would likely be terminated immediately and the employer would pay a lump sum equivalent to eight weeks worth of salary. So in most cases, the longer the “reasonable notice”, then the bigger the lump sum salary that is paid in lieu of notice.

“Reasonable notice” is also determined by the common law, that is, past decisions by Judges as to what is a reasonable notice period. In most cases a “reasonable notice “ period is the greater of either that stipulated in the Manitoba Employment Standards Code or the common law.

There is one scenario where the employer does not need to give notice. When an employee is genuinely a bad employee, perhaps stealing from the business or harassing other employees. In this situation, the employee can be fired from their employment and the employer has no obligation to provide reasonable notice or pay wages in lieu of reasonable notice. The employee is said to be fired for “just cause”.

One of the most common legal issues that arises for person’s transitioning is loss of employment. Unfortunately some employers are transphobic and will immediately fire an employee because they have decided to transition.

In such a circumstances the fired individual will have to decide whether to lodge a complaint with the Manitoba Human Rights Commission, claiming discrimination, or whether – for various strategic reasons – they want to make a claim in the Courts for wrongful dismissal. If they make a claim for wrongful dismissal, the are in effect claiming that they did not receive reasonable notice of their dismissal or wages in lieu of reasonable notice.

If such an employee is a member of a union, then a claim for wrongful dismissal is not available to them. Rather they must take up their grievance with the union. The union will then advocate for the employee. If the union and the employer cannot resolve matters, then the matter may proceed to a labour arbitration hearing.

But where there is no union, the employee may make a claim for wrongful dismissal.