Employment Law: Do You Have a Wrongful Dismissal Case?

Originally published by Bob Kraft .

The anger and frustration that comes with losing a job may be motivation enough for anyone to turn around and sue their previous employer. However, there are very specific circumstances in which a former employee can successfully sue for being fired. Before you make that call to your lawyer, find out more about wrongful dismissal cases.

Two Types of Dismissal

There are two types of job termination that potentially lead to wrongful dismissal lawsuits. They include wrongful termination and constructive dismissal (source: Kitchen Simeson Belliveau LLP, lawyers in Oshawa).

Wrongful Termination

Wrongful termination refers to an employer firing an employee based on reasons that violate laws (like discrimination) or written/oral agreements. For example, if a boss fires his secretary because she is pregnant and he doesn’t want to give her maternity leave, that might be wrongful termination.

Constructive Dismissal

Constructive dismissal occurs when an employee quits their job against his or her own will because of their employer’s conduct. The employer does not actively terminate the employment, but creates a situation in which the employee has to quit. For example, if a boss reduces your pay, knowing that the lower wage will force you to quit and find a new job, it could be considered constructive dismissal.

If either of these situations match the circumstances surrounding your own dismissal, you may have a wrongful dismissal case.

Two Types of Employment

While there are several different categories of employment in each job industry (contractors, part- and full-time workers, salaried employees, temps, etc.), the two most important categories for wrongful dismissal cases are employees who signed an at-will agreement, and those who did not.

At-Will Agreements

An at-will agreement is a contract that allows an employer to fire his or her employee at any time for any reason (excluding illegal reasons like discrimination of course). If you signed an at-will agreement, the only way you will have a potential wrongful termination case is if you can prove you were fired for illegal reasons.

If you can prove that you and your employer had an oral agreement or an implied contract for permanent employment despite the at-will policy, then you may have a wrongful termination case.

Non At-Will Agreements

All states in the US excluding Montana are at-will states. That means that even if you didn’t sign an at-will agreement, the policy may still apply to you. The only way to be sure you are not an at-will employee is if you signed a contract that explicitly states your employer will only fire an employee if he has a valid cause.

If you signed a contract saying you would not be fired at all before a set period of time, any termination before that date would be considered an illegal breach of contract.

Wrongful Termination

If you were fired for any of the following reasons, your employer broke the law with your termination (source: Legal Match):

• termination based on age, race, sex, nationality, etc.


• termination that violates terms of a contract


• termination resulting from you taking a valid leave of absence


• termination based on the acts of others in the workplace


• termination used to retaliate

If you suspect that any of these reasons apply to the circumstances under which you lost your job, talk to a lawyer about how to build your wrongful dismissal lawsuit.

The Next Steps

If you think your termination could warrant a wrongful dismissal case, complete the following tasks as soon as possible (source: Nolo):

• Make a record of any work-related events or conversations you had with your bosses, supervisors, or coworkers that are relevant to the dismissal. Also collect things like performance reviews, changes in pay, and any praise/criticism you received.


• Ask your employer for a written explanation of why you were fired. Document your request (send an email, for example) so even if the employer refuses to provide such an explanation, you have proof of that refusal.


• Keep track of any unemployment compensation claims you file after being dismissed.


• Meet with a lawyer who works in employment law to discuss the situation. Bring all the relevant documentation. If the lawyer is willing to take your case, he or she will tell you what the next move will be.

Losing your job can be a big blow to your finances and your dignity. If you feel that the conditions surrounding the termination were unfair, in breach of contract, or illegal, talk to an employment law lawyer as soon as possible.

This article is from Erika Remington. Originally from San Jose, California, Erika is a recent graduate of the University of California, Berkeley. She enjoys spending her time with her husband and 18 month old daughter. She also enjoys rock climbing and outdoor activities.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.

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