Area of Law: Employment Law
Answer # 607
Employee options if wrongfully dismissed: Negotiation, mediation, lawsuitRegion: Ontario Answer # 607
If you have been dismissed from your employment without a good legal reason and have not been given proper notice, or pay instead of notice, you have been wrongfully dismissed and you have rights under the law.
Before beginning a lawsuit, it is a good idea to try to negotiate or mediate a settlement with your employer, as lawsuits can take quite a long time and are costly. If you are unsure about what your rights are, it is important to consult with a lawyer before you sign anything or put your demands in writing. Even if you have been given notice or pay instead of notice, you may be entitled to additional wages or severance pay. If you think you were wrongfully dismissed and you want to know your legal options or start a lawsuit, you should consult a lawyer.
If you feel that you are sure about what your rights are, the fastest and easiest solution is for you to resolve the problem with your employer in person. It is a good idea to set up a meeting time in order to discuss your concerns and negotiate a settlement. Before attending such a meeting, you should write down any information you feel is relevant.
If the employer fails to meet with you, or will not agree to what you have asked for, you can then hire a lawyer, or begin a lawsuit. Often, a strongly worded letter from an employment lawyer is enough to encourage an employer to pay the amount requested. If the employer still refuses to pay you what you are owed, you may then choose to take them to court.
Suing for wrongful dismissal
In Ontario, if the amount you are claiming is $35,000 or less, you have the right to sue your employer in Small Claims Court. If the amount is greater than $35,000, you will have to start the lawsuit in a higher court. In many cases, employers do not want the expense of going to court, and may prefer to pay the employee to settle the matter. Few cases actually get to trial and they may settle at any stage of litigation. Normally, you or your lawyer will want to try negotiating with your employer before the lawsuit goes to court.
If you decide to sue your employer, you can ask for three types of compensation.
First, you can claim that you were wrongfully dismissed and ask for the amount of money which equals the notice period you were entitled to.
Second, if your employer fired you in a way that was cruel or humiliating, and because of this you suffered mental distress, you can ask for special compensation.
Third, if your employer fired you in a malicious way or with the intent of causing you personal embarrassment or harm, you can also ask for money to be awarded to you as a way of punishing the employer for their actions. Usually, claims for mental distress and punishing the employer are only allowed in very extreme cases.
The chances of you winning in court will depend on the details of your situation.
Mediation or arbitration
In some cases, the court will refer the case to mediation. Mediation or arbitration may also be required if your employment agreement includes clauses which deal with these alternative dispute resolution processes.
Mediation is the process of trying to solve disagreements between people or companies without going to court. It is a form of negotiation that is chaired by a neutral person, called the mediator. The mediator has no personal interest in the outcome of the mediation, and is there on the agreement of all the parties. If the parties are able to solve their disagreement with the assistance of the mediator, they can write up the agreement in the form of a contract with their lawyers.
Arbitration is a quasi court proceeding although there is much greater flexibility in an arbitration. The arbitrator is a neutral party, whose role is to hear both sides of the case and make a ruling. The people in the dispute select the arbitrator. The arbitrator’s decision is final and binding, and can be enforced in the same way as a judgment of the court.
For more information, refer to the Arbitration and Mediation section of Legal Line.
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