My employment was terminated. What are my rights?
Losing one’s job can often be a shocking and confusing experience. It is important for both employees and employers to understand their rights and obligations when an employee is terminated, to avoid any messy legal disputes.
When an employer terminates someone’s employment, it can happen in one of two ways: termination “with cause”, or termination “without cause”. A wrongful dismissal in Nova Scotia occurs when an employee is terminated without cause and without adequate notice of termination, or pay in lieu of notice.
What is termination for cause?
Our courts have called termination with cause the ‘capital punishment’ of employment law. Generally, an employee who is terminated for cause is not entitled to any notice of termination or severance payment at all, either at common law or by statute. This is sometimes referred to as “summary discharge” or “just cause termination”.
Only the worst workplace behaviour can justify termination for cause. The standard is high. If it is challenged in court, the employer must prove the employee committed serious and wilful misconduct that gave rise to a major breakdown of trust in the employment relationship. Examples of such misconduct may include: theft, insubordination, culpable absenteeism, sexual harassment, conflict of interest, breach of fiduciary duty or criminal conduct. Note that poor performance alone is usually not enough to justify a termination for cause.
If you are terminated for cause, you should contact an employment lawyer immediately to discuss your options. Likewise, if you are an employer considering firing an employee for misconduct, speak with an employment lawyer to understand your level of risk.
What is termination without cause?
Termination without cause occurs when someone’s employment is terminated for any reason other than those rare situations of serious and wilful misconduct discussed above. This is wrongful dismissal in Nova Scotia.
Most employers are generally entitled to terminate employees for any reason (or for no reason at all), so long as they provide the employee with adequate notice of termination. Notice can take the form of ‘working notice’, or pay in lieu of notice in the form of a salary continuance or a lump sum. If the employer fails to provide adequate notice or pay in lieu, this is called wrongful dismissal in Nova Scotia.
Unless your employer can prove it had just cause for termination as described above, you are very likely owed some amount of severance. The amount you are owed can vary widely and depends on a range of factors, including for example the terms of your contract, your age, and your length of service with the employer. Aggravating factors that might justify a higher amount of severance include poor economic conditions, being sick or pregnant, false allegations of cause, or something else that may affect your ability to find comparable employment in a timely way.
Employers are not entitled to terminate employees where a factor in the decision was a prohibited ground of discrimination under human rights law, such as the employee’s gender, race, age, or disability (s. 5 of the Human Rights Act). Also note that Nova Scotia is a rare provincial jurisdiction where, by statute, an employer is not permitted to discharge an employee with over 10 years’ service without just cause, except in limited circumstances (s. 71 of the Labour Standards Code). This is another form of wrongful dismissal in Nova Scotia.
If you are terminated without cause and offered a severance package, do not accept it right away. Speak with an employment lawyer first, who will help you understand your rights and determine how they might assist.
Likewise, if you are an employer contemplating cutting ties with an employee, consult with an experienced lawyer to understand your obligations.
Do you feel you have been the victim of wrongful dismissal in Nova Scotia?
Contact us today to book a consultation with our employment lawyer, Daniel Wilband. He can advise on whether or not you have been part of a wrongful dismissal in Nova Scotia.
The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.
About the Author
This article was written by Daniel Wilband, one of our employment lawyers. To learn more about Daniel, please visit our about us page. To learn more about our services in employment law, please visit our employment law page.