The topics in the Dial-A-Law series provide only general information on legal issues within the province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation. The purpose is to make you aware of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.
This topic will discuss wrongful dismissal.
You should seek legal advice if you feel that you have been wrongfully dismissed from your job, as this can be a very complicated area of the law. This general information only applies to non-unionized employees who are employed by a provincial jurisdiction employer. It also does not apply to unionized employees who are governed by a collective agreement, or employees working for federal jurisdicton employers such as banks, airlines or railways.
Section 56 of the Alberta Employment Standards Code sets out the minimum termination notice that an employer must give an employee to terminate their employment as follows:
- 1 week, if you have been employed for more than 3 months but less than 2 years
- 2 weeks, if you have been employed for 2 years or more but less than 4 years
- 4 weeks, if you have been employed for 4 years or more but less than 6 years
- 5 weeks, if you have been employed for 6 years or more but less than 8 years
- 6 weeks, if you have been employed for 8 years or more but less than 10 years
- 8 weeks, if you have been employed for 10 years or more.
Instead of giving termination notice, an employer may pay an employee termination pay in lieu of notice or a combination of the two, unless the contract of employment modifies this right. Statutory termination notice or termination pay is not required when an employee has been employed for 3 months or less. You may also contact the Employment Standards Board at 780-427-3731 or toll-free by dialling 1-877-427-3731.
If you are not employed under a contract of employment which specifies the amount that will be paid to you on the termination of your employment, you may also be entitled to “reasonable notice” of your termination. The Alberta Employment Standards Code only provides for a minimum notice period. If your employer does not provide you with sufficient advance working notice, the employer is obligated to provide you pay in lieu of notice. If you are not satisfied with the amount of notice provided or the amount of the severance package offered by your employer, you may decide to sue for wrongful dismissal damages. The case law determining what is reasonable notice for the termination of employment is extensive and complex and it is determined by many factors, including:
- Your age
- Your position
- Your length of service
- Your level of compensation; and
- The likelihood that you will secure alternative employment
If you wish to collect the minimum termination pay specified in the Alberta Employment Standards Code, then you may go to an employment standards officer to assist you. If you think that you are entitled to more notice than what is provided in the AlbertaEmployment Standards Code, then you should consult with a lawyer to bring your action in the Courts.
If you believe that you have been wrongfully dismissed, you have a duty to take all reasonable steps to mitigate your damages by searching for alternative employment. If you are offered a comparable position during the reasonable notice period, you may be obligated to accept it. If you obtain other employment, any amounts earned from your new employment during the reasonable notice period may be deducted from any damages owed by your employer.
If your employer had just cause to terminate your employment, you will not be entitled to any notice or payment in lieu of notice or statutory termination pay. Just cause for termination may include incompetence, dishonesty, insubordination and refusing to carry out reasonable orders. Your entire employment record with your employer’s business may be presented as evidence against you. It is up to the Court to decide whether the misconduct was enough to warrant the dismissal. The Court may also consider whether the employer had given you an opportunity to change your ways or improve your performance. A single incident of misconduct may not be enough to justify dismissing you for just cause without any notice or payment in lieu of notice.
You may also have a claim for constructive dismissal if you believe that your employer made the working environment so unbearable that you were forced to resign. Constructive dismissal may include situations where your employer significantly reduces your salary, completely changes your job responsibilities, insists that you change job locations, or prevents you from carrying out your duties. This is another complex area of law and you should contact a lawyer for legal advice before you quit your job and allege constructive dismissal. Employers are generally able to alter some terms and working conditions unilaterally and a Court may find that certain changes made by the employer in the workplace do not amount to constructive dismissal. Furthermore, the Court may find that you accepted the change or condoned the change over time.