By: Nikki McManus

  You're fired. Wrongfully, or "unjustly" dismissed. No matter how euphemistically it's put, you're out. Toast. History.
  We're not talking redundancies, merger bloodbaths, outsizing, downsizing, or "workforce adjustment". We're talking your reputation, your future, your ability to be employed again. We're also talking about how to fight back.
  There's maybe three ways to protect yourself from being fired. One, belong to a union. Two, work for a government or Crown corporation. Three, be self-employed (It's hard to fire yourself). Other than that, you're fair game. Industry type doesn't matter. Neither does the size of the employer. You're just as likely to be fired from a mega corporation as you are to be fired from a small one. But you do have options. One is to accept the situation and go forward. Another, more drastic, is to sue for wrongful dismissal. If you choose the latter, here's a quick overview of what to expect, what to do, and how to go about it.
  The first thing you have to realize is that you're not alone. It's not known exactly how many wrongful or unjust dismissal cases are launched in Canada each year, but Quicklaw, Canada's largest online legal publisher (with access to more than 1,200 caselaw and legislation databases), records that close to 5,000 cases have gone to court since 1968. Most wrongful dismissal cases never get that far. They're settled out of court, for which statistics aren't readily available.
 

Your employer should give you copies of written reports and comments so that you have the chance to refute those comments, agree, disagree and state your case

  Human Resources Development Canada (HRDC) arbitrates some 1,200 cases a year, but its mediation and conciliation efforts cover only those industry segments that cross provincial boundaries - such as banks, airlines, broadcasting etc. The number is relatively small because many of these sectors are unionized, so the union takes up the cudgels for a "grieved" worker.
  To make its case stick, an employer must follow disciplinary procedures outlined in common law - including written warnings (two or three), personal interviews (where you're told to shape up) and further interviews to evaluate progress. Your employer should give you copies of written reports and comments so that you have the chance to refute those comments, agree, disagree and state your case. But if you still don't meet your employer's perceived expectations, you can legally be fired - with no recourse.
  This scenario assumes your employer's human resources department (if it exists) follows accepted legal practices. Unfortunately, this isn't an ideal world and many smaller employers aren't familiar with Part lll of The Canada Labour Code, which covers alleged complaints of unjust dismissal in the federal jurisdiction. That's the word from Bruce Boughen, Manager, Labour Standards Operations with HRDC's Labour Branch, Hull, Quebec.
  If you've ever been fired, you'll know that HR departments can be incredibly creative in trumping up allegations, embroidering the truth, or downright lying about an employee's performance to substantiate their case. Tactics like delaying issuing the mandatory Record of Employment is another favourite way to grind you down.
  Regardless, Chris Chenoweth, a lawyer with Kuretzky Vassos, a firm whose practice includes wrongful dismissal, recommends you register with the Employment Insurance Commission immediately, even if you haven't yet received your Record of Employment. If your former employer holds the documentation up, Employment and Immigration Canada's Manpower section will ensure it's issued.
  "Most companies delay sending out these forms, not to be malicious, but because it's the only legal document that actually has the written reason why someone is fired," Chenoweth points out. "The form usually contains one of two key letters under "reason for dismissal" - K (for other), M for 'dismissed with cause'. If your form has an M on it your may be restricted, or denied, unemployment benefits. Your only option is to challenge allegations of 'cause' at a Commission hearing. It's that simple."
  If you have the stomach for it, and decide to sue your former employer via the courts, be warned. Litigation can get pretty down and dirty. It can be long and drawn out - anywhere from months to years - depending on complexity and how long it takes to settle. And it can be very expensive - especially if you lose! Costs range from a low of $1,000 to a high of between $20,000 and $25,000 depending on the length of time it takes and how far you're willing to go (see sidebar).
  Is there an average cost? Yes. "For cases that settle quickly, most people's legal fees can run between $1,200 and $2,500. And if you were dismissed without cause, and get a cash severance payment, your legal bills are tax deductible," Chenoweth explains.
 

If you opt for the "legal" route, a lawyer specializing in wrongful dismissal cases is essential

  You'll also need a representative. But finding one isn't as easy as it sounds. For example, a Labour Program specialist from your local Human Resources Development Canada office may be able to investigate your complaint and help you to reach a settlement at no charge. To obtain this assistance, you must file a complaint, in writing, within 90 days. But remember, these powers are limited to federal jurisdictions - so if you worked for Joe Schmoe's advertising agency in Vancouver you're fresh out of luck.