wrongful dismissal claims be resolved through arbitration
Wrongful dismissal is a form of termination that occurs when an employer violates the terms of a worker’s employment contract and causes damages as a result. The law defines wrongful termination as “any dismissal that is not in accordance with the law or with the contractual rights of the employee.” While the law allows for a variety of reasons to terminate an employee, it also entails the requirement that an employer provide a reasonable notice period and compensation. The Toronto wrongful termination lawyers at Minken Employment Lawyers have helped numerous clients recover significant compensation after being wrongful dismissal.
Many employers include arbitration clauses in their workers’ contracts in order to avoid lengthy litigation through the public court system, however, forcing your employees to waive their rights to a trial may harm your business and negatively impact your ability to attract top talent. In addition, it is important to understand that the arbitration process can often lead to very different results than a trial.
Arbitration is a dispute resolution method that involves an impartial third party – known as an arbitrator – hearing both sides and making a decision. The arbitrator is usually a lawyer or retired judge with experience in the subject matter of the dispute. Typically, both parties choose the arbitrator together or they can be appointed by a court. Both parties are required to disclose any potential conflicts of interest. Whether the decision is binding or non-binding depends on what was agreed upon before the arbitration started.
Can wrongful dismissal claims be resolved through arbitration?
It has been shown that plaintiffs in labour disputes have a higher rate of success in arbitration than in trial, but the median dollar awards are lower. Some of the reason for this is because of limitations on pre-trial discovery and because there is no jury in an arbitration case. Additionally, there are cases when the rules of evidence are looser in arbitration and the arbitrator can consider hearsay or circumstantial evidence.
Moreover, some courts have held that an arbitration agreement can be unenforceable if it is found to be “substantively unfair.” In one example, a worker’s signature on the arbitration agreement was procured by her employer and she did not have the capacity to read or understand it. In addition, the arbitrator’s agreement to forego certain types of damages was found to be substantively unconscionable because it would have been prohibitively expensive for the worker to pursue her claim in a court of law.
Many employment contracts stipulate a notice period that must be provided before termination. If an employer dismisses an employee without giving this required notice or paying in lieu of notice, it may be considered wrongful dismissal. For example, if a contract mandates a one-month notice period and the employer fires the employee immediately, this could constitute wrongful dismissal lawyer unless justifiable grounds are presented.
Our team of experienced Toronto wrongful dismissal lawyers has years of expertise representing workers in a wide variety of employment law matters including wrongful termination. Contact us for a free consultation. We serve clients throughout the Greater Toronto Area (Markham, Newmarket, Aurora, Richmond Hill, North York, Vaughan, Woodbridge, Mississauga, Brampton, Ajax, Pickering and beyond). We can also represent clients nationally and internationally.
