Thursday, June 28, 2012

Wrongful dismissal in Nunavut

In most jurisdictions in Canada there are statutory and common law protections for employees who have been terminated without cause.  Basically, a statute provides for a minimum notice period before termination and the common law damages are to provide a compensation for a  reasonable notice that is (usually) in excess of that statutory entitlement.  Often employers prefer to terminate without notice and so will say “your job is over today – here is a cheque for the amount of your salary that would be paid during the statutory notice period”.  That is perfectly a proper action for an employer.

Common-law severance is intended to give the employee income for a limited period until they find a new job;  as a result if you are fired today and immediately get another job that pays the same you probably have no entitlement to common law damages although you are still entitled to the statutory notice or payment in lieu thereof..

In Nunavut the statutory notice periods are:

Length of Service                                                                      Required Notice

Less than 90 days                                                                     None
90 days to 3 years                                                                    2 weeks
3 years but less than 4 years                                                      3 weeks
4 years but less than 5 years                                                      4 weeks
5 years but less than 6 years                                                      5 weeks
6 years but less than 7 years                                                      6 weeks
7 years but less than 8 years                                                      7 weeks
8 years or more                                                                        8 weeks

Very few cases dealing with wrongful dismissal have come out of the Nunavut Courts.  One decision, Butschler v. Waters, 2009 NUCJ 4, makes clear the customary common law principles from the other common law provinces apply in Nunavut:

The general rule for indefinite contracts is that the employer can terminate the employment without cause if the employer gives the employee reasonable notice of termination as defined by law. If the employer fails to provide reasonable notice the employee will be entitled to damages for the reasonable notice period: see Ellen E. Mole, Wrongful Dismissal Practice Manual, looseleaf, 2d ed. (Markham: LexisNexis, 2006) at 1-1 to 1-7.


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Unknown said...

It is important that an employee should never be completely surprised by a termination, which is usually the case when a manager or associate department has not communicated the next steps to an employee who is misbehaving or performing incompetently. Even in case of serious misconduct, the employer must show that the incident was properly investigated, consider suspending the employee with pay, pending an investigation rather than rashly terminating his or her employment. In the terminating contract the employer might specify the employee not to make any negative comments towards the employer, its successors, affiliates..etc. etc. which I think goes against The Canadian Charter of Rights and Freedoms on Freedom of Thought, Expression or Belief. Would the Charter of Rights and Freedom over-ride such a contract?

Unknown said...

How much time does an employee have to file for wrongful dismissal? I believe I know someone that was wrongfully dismissed but they aren't the type to make the initial step. Trying to see if I can help them out.