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When can I sue my employer?

A worker leaves the office upon termination. Stock photo by Getty Images.
Stock photo by Getty Images

You can sue your employer while you are still employed or after you leave work, depending on your situation.

If you have an issue at work, try to first engage in negotiations with your employer to find a mutually agreeable solution to save yourself the costs and hassles associated with bringing a lawsuit. Courts, in most cases, are best left as a last resort.  

If you’re a unionized employee, however, you can’t sue your employer in court. You must follow the grievance process that is set out in your collective agreement. This means you bring your claims to your union representatives and they have to iron them out with your employer. Unions have a duty of fair representation towards union members and cannot make decisions regarding grievances in bad faith, arbitrarily, or in a discriminatory manner. You can bring an administrative complaint against your union if you think it should have handled your grievance differently.

Non-unionized employees can sue their employer in court if the employer fails to uphold its duties and obligations under the employment contract or employment and human rights laws.

At the very least, your employer must meet employment standards such as minimum wage requirements, protection of employees’ safety, overtime pay, mandatory sick days, vacation pay, notice of termination requirements, termination pay, and severance pay. If your employer is not meeting the basic legal requirements and is not responsive to your concerns, you have a right to sue.

Employer-employee relationships often get sour when people are laid off or fired for questionable reasons. You may sue your employer for wrongful dismissal if your employer terminated you for improper or illegal reasons.

A close cousin to wrongful dismissal is constructive dismissal. This is when the employer makes the work environment intolerable to force the employee to walk away from the job. If you sue your employer for constructive dismissal, you have the responsibility (onus) to convince the judge that the environment was so bad that no reasonable person would have been able to continue to work. Constructive dismissal also extends to situations when the employer abuses and harasses you at work or gives you a “quit or be fired” command.

The employment contract usually sets out the terms of employment. They may include such things as the job description, work hours, pay structure, vacation allowance, sick leave, benefits, and termination-related clauses. If the employer changes the terms of the contract unreasonably without your consent, you may sue your employer for a breach of employment contract.  If the changes are severe and you have no choice but to leave, the situation may amount to constructive dismissal. The most popular occurrences are when the employer reduces your salary significantly or changes your work hours drastically.

You also have freedom of expression and privacy rights that the employer must respect. Generally speaking, the employer may not restrict or intrude into your personal affairs and opinions outside work. Additionally, any personal and financial data the employer stores about you may not be disclosed to the public without your authorization and outside the bounds of your employment contract.

Moreover, every province and territory has anti-discrimination and human rights legislation. These laws protect individuals from being discriminated against and harassed at work. As an example, you may not be denied a promotion or salary raise solely because of your religion, ethnic background, sex or sexual orientation. If you are treated differently or unequally, without a valid reason, your employer may be sued for engaging in discriminatory employment practices.

To learn about your employment rights and how to sue your employer in your jurisdiction, consult with an employment lawyer.

Read more:

Termination of employment in Ontario

Your rights at work CLEO