A wrongful dismissal in Alberta is when an employer ends their employment relationship with an employee unlawfully. According to the Alberta Employment Standards, there are three key scenarios that can be determined as wrongful dismissal:
- The employer does not provide the employee with adequate notice of termination;
- The employer does not provide the employee proper pay in lieu of notice;
- The employer claims just cause for dismissal without actually having just cause.
If an employee is wrongfully dismissed, they are entitled to the pay and benefits they would have earned during the required minimum notice period set by the Employment Standards.
Wrongful Dismissal Case Process: What are the steps in a wrongful dismissal case?
If you think you may have been wrongfully dismissed, here’s what to expect and how to prepare to file a wrongful dismissal claim or lawsuit.
- Prepare for Consultation with an Employment Lawyer
It’s best to consult with an employment lawyer to find out about your rights as a dismissed employee. Before your consultation, gather evidence to bring to your lawyer. This might include:
- Employment contract
- Employee handbooks or manuals
- Communication between yourself and your employer (e.g. emails, text messages, etc.)
- Your termination notice
- Pay stubs for your regular paycheques and any bonus paycheques
- Proof of your alternative job search efforts
- Any receipts or proof of out-of-pocket expenses you incurred as a result of your termination
The more evidence you provide to your lawyer, the easier it will be for your lawyer to accurately assess the situation and advise you of the next steps.
- Consultation & Assessment
The purpose of a consultation with an employment lawyer is to assess the strengths and weaknesses of your case. Your lawyer will advise you of what possible compensation you may be entitled to, a potential range of awards you may receive, the strengths of your case, as well as the risks you face, going forward.
In some cases, your lawyer may determine that you don’t have a case for wrongful dismissal, or that the time and expense of fighting for more compensation is not worthwhile.
But when the evidence indicates that it makes sense to pursue the case, your lawyer will advise you of the next steps.
- Demand Letter to the Employer
If your lawyer believes there’s a case for more compensation, the next step is to attempt to resolve the matter out of court by corresponding directly with the employer.
Your lawyer will draft a demand letter that requests more compensation and explains the justification for the increased amount. For example, your employment contract may include provisions for more compensation.
This part of the process can take a couple of months as letters are exchanged between your lawyer and your former employer. Even though it may take some time, it’s preferable to resolve the matter at this stage because it’s the least time-consuming and the least costly.
- Negotiation with the Employer
If the situation cannot be resolved during the demand letter stage, the next step is to file a lawsuit and serve a Statement of Claim.
The Statement of Claim explains the case to the court and requests the compensation your lawyer believes you’re entitled to. The purpose of this Statement is to put pressure on your employer to settle the matter before it goes to court.
The employer responds to a Statement of Claim with a Statement of Defense, which may agree to, refute, or add to the Statement of Claim. You and your lawyer can then file a Reply. In this way, you’re negotiating with the employer out of court.
In some jurisdictions, mediation is mandatory before presenting a wrongful dismissal case in court. It’s the preferred method of resolving a wrongful dismissal case because it saves time and resources if it prevents the case from going to court. It’s the final attempt to settle a wrongful dismissal case before a trial happens.
During mediation, both parties present a brief to a third-party mediator. Each party and its representatives are in separate rooms, and the mediator goes back and forth between them. The mediator’s job is to try to coordinate a settlement.
If mediation is not successful—which is rare for most wrongful dismissal cases—the case proceeds to court. This is by far the most costly and time-consuming step in the wrongful dismissal case process, which is why a settlement is the goal of the earlier stages.
In simple cases where the only issue is the amount of pay due to the employee, the parties attend civil court to set a date for summary judgment.
Both parties take time—usually several days or weeks—to prepare for a summary judgment motion, which includes a written legal argument and an affidavit of evidence. The process of preparing these documents often leads to a settlement, especially if the employer realizes they don’t have a strong case.
At the motion for summary judgment, the judge decides about the payment to be awarded to the employee.
For more complex wrongful dismissal cases, it can take a year or longer to get a trial date. Then the parties attend a pre-trial conference with a judge, which is another opportunity to settle the matter. The final stage is the trial, and in extremely rare cases, an appeal.
Wrongful Dismissal Employment Law Attorneys in Calgary & Strathmore
If you think you may have a case for wrongful dismissal, you should consult with an employment law lawyer. The lawyers at Getz Collins and Associates can assess your case, advise you of your rights, and help you through every step of the process. Contact us today.