I always advise clients to consider their options when they must dismiss an individual (assuming it is without cause). Rather than automatically offering a package, and paying the employee not to work, I encourage our clients to consider whether a period of working notice could be viable. By doing so, at least they would get some value for their money. However, I often think back to a comment made by Mr. Justice Donnelly of the Ontario Superior Court of Justice, who, in the course of considering a wrongful dismissal claim, opined that “[w]orking notice is an institution almost invariably predestined to fail.”
One of the difficulties faced by plaintiffs’ counsel in wrongful dismissal litigation is the length of time it can require to get a case to trial and obtain monetary compensation for the dismissed employee. Obviously, a plaintiff without a job is sensitive to the costs and delay which may result. This issue can often be addresses by way of a Motion for Summary Judgment.
Most employers understand a claim for damages for wrongful dismissal as arising from the termination of an employee’s employment without adequate cause or notice. It can be argued that this in fact reflects a misconception of the nature of the employment contract. Except in certain limited cases of federally regulated companies,...
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