Wrongful termination

FAQ

What is wrongful dismissal, terminationor or discharge?

Wrongful dismissal, also called wrongful termination or wrongful discharge, is an idiom and legal phrase, describing a situation in which an employee's contract of employment has been terminated by the employer in circumstances where the termination breaches one or more terms of the contract of employment, or a statute provision in Employment law. It follows that the scope for wrongful dismissal varies according to the terms of the employment contract, and varies by jurisdiction. Note that the absence of a formal contract of employment does not preclude wrongful dismissal in jurisdictions in which a de facto contract is taken to exist by virtue of the employment relationship. Terms of such a contract may include obligations and rights outlined in an employee handbook.

Examples of wrongful dismissal might include:

• dismissal without going through a contractually mandated dismissal process, which might involve an escalating series of warning letters, &c, where grounds for dismissal are not such as to meet the test for summary dismissal.
• dismissal for a wrongful cause, for instance in a circumstance in which a dismissible action is falsely attributed to an employee.
• racial, sexual, or age discrimination
• retaliation for filing a workers' compensation claim or for reporting illegal employer activity (a.k.a. whistleblowing).

Wrongful dismissal will tend to arise first as a claim by the employee so dismissed. Many jurisdictions provide tribunals or courts which will hear actions for wrongful dismissal. A proven wrongful dismissal will tend to lead to two main remedies: reinstatement of the dismissed employee, and/or monetary compensation for the wrongfully dismissed.

A related situation is constructive dismissal, in which an employee feels no choice but to resign from employment for reasons imposed by the employer.

One way to avoid potential liability for wrongful dismissal is to institute an employment probation period after which a new employee is automatically terminated unless there is sufficient justification not to do so. The dismissed employee may still assert a claim, but proof will be more difficult, as the employer may have broad discretion with retaining such a temporary employee.


What action can I take against a wrongful termination?

If you have been fired without a good reason or in violation of federal or state law (e.g., discrimination), this could be a wrongful discharge and you can challenge your firing. However, before you take action, run your complaint by an attorney for advice because it is likely to be time consuming and costly, and the laws regulating firings vary from state-to-state. But if you succeed, employers can be made to pay back wages, fines, and possible punitive damages or you can be returned to your job.

The odds of successfully winning a wrongful discharge claim if you are an "at-will" employee are slim because your boss has the right to fire you for any or no reason at any time so as long as all protections afforded by state and federal law have been followed. Where no wrong has been committed, "at-will" employees have no remedy for employment termination.

On the other hand, firing a "for-cause" employee without a legitimate reason can be challenged on several fronts:

(1) A union employee covered under collective bargaining agreements can file a grievance for review of the facts and circumstances if s/he believes the termination was wrong.

(2) A government employee may have a property interest in his/her job which cannot be taken away without sufficient cause as determined by a court of law.

(3) Non-government employee may file a lawsuit to have his/her employment termination found to be wrongful. If sufficient cause is established, the inquiry into the employment termination will be closed and the termination completed. However, wrongful termination can result in an employer being held responsible for back wages with interest, reinstatement of employment, and often for punitive damages assessed as a deterrent to other employers.


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