Wrongful Dismissal and Termination in Saskatchewan
What Qualifies as Wrongful Dismissal in Saskatchewan?
Wrongful dismissal occurs when an employer fails to comply with its legal obligations when terminating an employee. The most common wrongful dismissal scenario is where an employer terminates an employee and fails to provide the notice (or pay in lieu of notice) required by statute, the common law, and/or the contract of employment.
For example, wrongful dismissal includes the following scenarios:
- Where an employer terminates an employee without cause and provides no or insufficient notice in relation to the notice period required by employment standards legislation and/or the common law;
- Where an employer terminates an employee without cause and, relying on an invalid contractual term, provides only the contractual notice period;
- Where an employer terminates an employee without cause and provides notice which falls below the notice period specified in the contract; and
- Where an employer provides no notice and terminates an employee for just cause and just cause is subsequently not proved.
Dismissals are also wrongful in the following circumstances:
- Where the employer, in terminating the employee, violates an employment standard;
- Where the termination is discriminatory and made on prohibited grounds; and
- Where the employee quits in response to the employer’s repudiation of the contract (constructive dismissal).
What Notice Period Must an Employer Terminating an Employee Provide?
An employer does not need to provide notice or pay in lieu of notice if terminating an employee for just cause. Just cause requires either serious misconduct on the part of the employee or a significant breach of the employment contract by the employee that fundamentally undermines the employment relationship.
If, however, an employer terminates an employee on an indefinite term contract without cause, the employee, provided that he or she has worked for the employer for a certain period of time, will be entitled to notice or pay in lieu of notice.
An employee employed under a fixed term contract who is terminated without cause before the end of the contractual term is entitled to the compensation he or she would have earned to the end of the contract unless the contract contains a valid provision allowing for early termination without cause.
Statutory Notice Periods
For most provincially-regulated employees employed under an indefinite term contract, mandatory minimum notice periods are established by sections 2-60 and 2-61 of The Saskatchewan Employment Act. As long as the employee has been employed for more than 13 consecutive weeks and does not belong to a category of worker excluded or exempted from Part II of The Saskatchewan Employment Act, the notice periods set out in the Act will apply.
The length of the minimum notice period depends on how long the employee has been employed by the employer:
- One weeks’ notice for employees employed more than 13 consecutive weeks;
- Two weeks’ notice for employees employed for more than one year;
- Four weeks’ notice for employees employed for more than three years;
- Six weeks’ notice for employees employed for more than five years; and
- Eight weeks’ notice for employees employed for more than ten years.
It is not possible to contract out of the mandatory minimum notice periods set out in section 2-60 of The Saskatchewan Employment Act. If an employment contract specifies a notice period which is below the statutory minimum, this portion of the contract violates The Saskatchewan Employment Act and is null and void.
A federally-regulated employee is entitled to minimum notice periods under the Canada Labour Code provided he or she has completed three consecutive months of continuous employment. As with the minimum notice periods under The Saskatchewan Employment Act, the amount of notice that must be provided increases with the length of employment, ranging from two weeks for employees with three consecutive months of continuous employment to eight weeks for employees with eight consecutive years of continuous employment.
Federally-regulated employees who have completed at least 12 consecutive months of continuous employment before termination are also entitled to severance pay. Severance pay is calculated as the greater of (a) two days wages at the employee’s regular wage rate for each full year worked before termination or (b) five days’ wages at the employee’s regular wage rate.
Common Law Notice
Depending on the employment contract, an indefinite term employee who has been terminated without cause may be entitled to more notice under the common law than is provided by the statutory minimum.
Common law notice is determined by a court. In contrast to statutory notice, common law notice is typically very fact-dependent and based on the age of the employee, the employee’s length of service, the nature of the employment, and the availability of similar work.
An employment contract can contract out of common law notice provided that the contract complies with The Saskatchewan Employment Act and that the provision in question is clear and unambiguous. Another difference with statutory notice is that employees have a duty to mitigate the damages arising from the loss of employment by attempting to find alternative employment.
How Does the Recourse Available to a Terminated Non-Unionized Employee Differ From That of a Terminated Unionized Employee?
Generally, a terminated non-unionized employee under provincial jurisdiction can only challenge his or her wrongful dismissal through the courts. However, if a non-unionized employee under provincial jurisdiction has been terminated without cause and without notice, or pay in lieu of notice, required under sections 2-60 and 2-61 of The Saskatchewan Act, he or she can make a complaint with Employment Standards.
In contrast, a terminated unionized employee under provincial jurisdiction must contest his or her termination through the grievance process established by his or her collective agreement.
For a non-unionized employee under provincial jurisdiction, monetary damages is the only available remedy for wrongful dismissal in almost all situations. In contrast, a unionized employee under provincial jurisdiction, whose termination grievance succeeds at arbitration, may be reinstated to his or her former position depending on the circumstances.
A terminated non-unionized employee under federal jurisdiction who has completed 12 consecutive months of continuous employment by an employer and who was not employed as a manager can seek reinstatement through an unjust dismissal complaint under the Canada Labour Code submitted to the Labour Program of Employment and Social Development Canada.
What are the Procedural Steps in a Wrongful Dismissal Claim?
A wrongful dismissal claim generally starts with a demand letter to the former employer. Presuming that this does not lead to a satisfactory resolution, the next step is the preparation of a Statement of Claim.
If the claim is for $50,000 or less, the Statement of Claim can be filed with Small Claims Court. A judge will issue a summons, the former employer may file a Statement of Defence, and a First Appearance will be scheduled. If the matter proceeds, there will be a Case Management Conference. If the dispute is not wholly settled following the Case Management Conference, then a trial will be scheduled.
If the claim is for more than $50,000, the Statement of Claim must be filed with the Court of King’s Bench. The former employer will very likely file a Statement of Defence in response. Mandatory mediation follows and if this does not resolve the matter, the next steps are document exchange, questioning, and a pre-trial conference before a trial can be scheduled.
What is a Release and What Happens if I Sign it?
At the point of the termination of your employment, your employer may ask you to sign a release. A release is a legal document which states that you agree to give up your right to make any future claims against your employer related to your employment and its termination. In exchange for you relinquishing the right to make any future claims, your employer will normally offer settlement money.
If you sign a release, you will generally not be able to bring a legal claim against your employer later. Before signing a release, you should consider whether you have any potential legal claims. You are entitled to minimum statutory entitlements under The Saskatchewan Employment Act regardless of whether you sign a release or not.
Need Assistance?
Our office is experienced with reviewing, drafting and advising on contracts and workplace policies. Note that employment laws are governed provincially and may differ from jurisdiction to jurisdiction. It is important to obtain advice specific to your jurisdiction. Consult our team for your questions and for assistance with your contracts and workplace policies.
The above information is provided for information purposes only and does not constitute legal advice.