Law – Wrongful Dismissal (Employment Law Canada)

Sandy Baratta (former Oracle Vice President for Global Alliance) vs Oracle (software and Hardware Company).2000-San Fransisco. Sandy Baratta claimed to have been fired for her pregnancy and whistle blowing against co-workers. The pregnancy termination claim was based on some deprecating comments made to her by the Oracle Vice President about pregnant executives. Sandy claims she was fired just after she had made a report about Oracle software group lifting some parts of SAP from competitor projects to get ahead.

The case ended with Sandy winning the law suit against her firm and she was compensated by $300 000 which represented her lost wages, 2 000 000 dollars worth of stock options which was part of her compensation and $200 000 in damages for emotional distress as according to the American employment law which is similar to the Canadian Employment Standards Act,2000, C41, part XV (termination and severance of employment notices) and part 10, section 83.1. The case above is just an example of how unscrupulous corporate people can be and if one is neither careful no clever, they may suffer unnecessary losses of work and income which they could otherwise have avoided.

Unfortunately most people in lower class jobs have no idea how the law can work to their advantage and instead just give up their right to cunning employers. Most of these fall within the spectrum of foreign workers in low class jobs, illegal immigrant workers, uneducated employees and minors employed in jobs such as babysitting. Perhaps more awareness is necessary to workers and they should probably be a mechanism in place which forces employers to explain wrongful dismissal to potential employees before they are hired or workshops that make employees aware of their rights as employees via trade unions and government funded programs.

In Canada wrongful termination of employment or wrongful dismissal refers to when an employer’s reasons for dismissing an employee are unjust such as in the case of Sandy Vs the Oracle above or when an employer fails to give the employee reasonable notice of termination as stated in the employments standards act. An employer’s unjust reasons could include discrimination, retaliation, refusal to commit illegal act and not following correct termination procedures among other things. When an employee is unjustly let go at work there is no law in Canada which enforces reinstatement even if the employee can prove unjust causes. An issue related to wrongful termination of employment would be constructive dismissal.

This refers to a situation where the employer exhibits an attitude so negative towards the employee that the employee is forced to resign. With the resignation not being in actual fact voluntary, this is just but accurately speaking a form of termination in a way and is considered as that by the law. Another rather important matter to note when discussing terms and conditions of employment law is the “At will clause”.

This is important because it in my opinion is what brings about the grey area between wrongful dismissals and just dismissal. The At Will clause specifies that both the employees and their employer can terminate an employment relationship at anytime, for any reason, but only if the employment relationship is not bound by a formal written contract and the understood duration is indefinite.

This clause works better to the advantage of the employee because at least it does not attract wrongful dismissal law suits. However other laws supercede the At Will clause so when arguing for the employee then arguments would be made stronger if they are based on employment decisions based on colour, race, sex, disability, age discrimination, nation of origin as well as occupational safety and the health act. Employment law arguably falls short of usefulness to a certain degree though very small in the following three circumstances: a) Constructive dismissal

b) At will causec) No reinstatementConstructive DismissalAn example of a constructive dismissal situation could be a nanny or worker A who reported her employee to her union because she is being made to work long hours on a below minimum wage.

The employer or just B would then maintain a stern face while barking orders and leaving no room for human error in addition to yelling at A for any not perfect work or blaming her for every small issue arising within the course of the job. In this state of affair any normal person would be forced to resign not because they do not want or need a job anymore but because it is close to impossible to work under those kinds of conditions. The employer may as well have fired her but even if she were to report the matter to the right officials, how would she prove that her reason for leaving the job was the cold attitude she was getting from her employer?

B could simply claim that A is just out to get her because of a past small event or something of that sort. In this case the law surely cannot just show a blind eye the employer and simply take the side of A. That would be unjust on the part of B. The question is what happens when A cannot prove that B emotionally forced her to resign? Situation such as these happen but of course they are very few to zero reports of this because employees are afraid of losing their jobs or they do not know the procedure of correcting the situation among other things. Other than that, it almost impossible to prove constructive dismissal.

The employee has to prove a fundamental rather than a minor breach of contract. The employee also has to show that their decision to live the job was because of the employer’s behavior and only that as opposed to better prospects or other reasons not related to the employer. Employees are usually expected to try and resolve this kind of issue with grievance filling bodies first and if this fails they can then file a suit for constructive dismissal.

The question will the grievance bodies send someone to monitor the employee during his or her full hours of work? In the above example of the live –in nanny, how will the grievance body see the problem assuming that B does not exhibit discrediting behavior in front of any inspectors from the grievance body. Chances are the live – in nanny suffers an unjust dismissal and the Canadian law is not enough to save her. It would be better for trade unions to petition for a law system which would improve such situations as these needless to say. Never the less until then employees should just maintain the “At Will” clause and get out of a job or start looking for another job at the first sign of a problem and hopefully find one. This is their only play in reality. The “At Will” clause

The reason why people sign contracts is to avoid inconveniences of all kinds. The at will clause may act as a protective shield towards employees and sometimes employers as well but is promotes inconveniences. The fact that as a business owner lives everyday prioritizing a worker’s needs in fear of them laving the job seems a little anti-productive. While this clause promotes excellent treatment of employees it affect employers negatively more. An employee can just decide they do not want to work at a certain place anymore and without a contract they can just leave. In the same way the employer can just decide to dismiss an employee without any real grounds of dismissal.

As long as he can prove he has not done it in a discriminatory way, he can let his workers go. In today’s business this clause is detrimental to business activity. Corporates and big partnerships are safe in that they usually do not establish any employer employee relationship without a contract but that is not always the case with sole traders. A small convenience store owner may hire an employee with no clarified terms of employment who may in turn get a better job with a bigger company somewhere else and decide to live the employer without notice.

If the employer has other businesses to attend to or if he has other things that take up his time then it means he would have to close his convenience store until he can find an alternative employee. Contrary to the above situation employers can actually use this clause to discriminate against workers and actually get away with it. An employer who hired a crippled receptionist via an online video interview such as skype can decide he no longer wants to work with her a month after she begins work.

The disabled worker will not be able to prove that she was discriminated against because of her disability. To avoid situations such as these it is better to remove the “at will” clause as a whole and people should just be forced to sign written contracts of employment in Canada so that no one gets inconvenienced by the other in business. No reinstatement

It is one thing to win a lawsuit for being wrongly fired but finding another job is a whole different issue to worry about altogether. As much as it may seem like a fair remedy to offer back compensation to a wrongly fired individual, they still will be left with the difficulty of finding a job made even worse by the fact that they have been involved in a law suit against their former employers so most people will probably not want to hire them making the job hunt twice as hard.

One may argue that the employee is compensated for all their trouble by a settlement which includes a damages amount but the fact still remains that the person still remains unemployed and that is a problem with no real solution at least so far. In most cases the employee would almost certainly not want to work for a company that he or she has sued before but there are times when jobs are difficult to find and that job is better than any job.

The Canadian legal system would therefore better serve the employee if it could make it mandatory to take back the employee for a reasonable period of time. While the above discussion is more of a hypothetical composition, it is based on situations that are actually possibly and potrays areas that employment law does not serve well in connection with wrongful dismissal. The At will clause, the fact that there is no chance of reinstatement after wrongful termination and the issue of constructive dismissal are areas in employment law that need revision if fairness is going to be achieved in the business environment in terms of employees and their employers.

REFERENCES1.Labour law casebook group, 2004, Labour and employment law, Toronto Iwrin Law 2.D.Kaye and M. Aickin, 1986, Statistical methods in discrimination litigation, New York M.Dekker 3.B. Nuse and D. Dukelaw, 1995, The dictionary of Canadian Law, Scarborough Ontario Carswell. 4.The Canadian business Law Journal, AginCourt Ontario-Canada law book, 5.P.Sworden, 2006, An introduction to Canadian Law, 2nd Edition, Toronto Edmond Montgomery publications 6.D.Lublin, University of New Brunswick Law Journal, March 2009,Vol 59, Wrongful Dismissal-Bad faith damages in Canadian business law. 7.S.Reginald and J. Braithwait, 2010, Canadian employment law, Student edition, Aurora Ontario Canada law book