When an employee fails to comply with their obligation to attend work, they may be considered to have ‘abandoned’ the employment and the employer may consider the contract as terminated.

In order to determine whether an employee has abandoned the employment, the test is whether “viewing the circumstances objectively, would a reasonable person have understood from the employee’s words and actions, that he or she had abandoned the contract”?

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‘Consideration’ commonly refers to the benefit that parties receive when they enter into a contract. Consideration is one of the elements required to establish a legally binding contract.  

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A ‘constructive dismissal’ may occur when an employer unilaterally makes a fundamental or substantial change to an employee’s employment contract. Where an employer fundamentally breaches the contract, an employee may consider himself or herself to have been constructively dismissed. 

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A wrongfully dismissed employee has a duty to make reasonable efforts to reduce their losses by searching for similar new employment opportunities, commonly referred to as an employee’s ‘duty to mitigate’.

Failure to make reasonable search efforts can result in an employee’s wrongful dismissal claim being reduced by the amount that they could have earned from similar new employment.

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Where an employee is guilty of serious misconduct or incompetence, the employer may dismiss the employee for ‘just cause’ (also commonly referred to as dismissal ‘for cause’). An employee dismissed for just cause is not generally entitled to any advance notice or pay in lieu of notice for the dismissal. 

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Compensation earned from replacement employment following a wrongful dismissal is referred to as mitigation income. In a wrongful dismissal action, the amount that an employer owes an employee will usually be reduced to reflect any mitigation income earned during the employee’s notice period.

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An employee who has been wrongfully dismissed is entitled to compensation for the losses that result from their dismissal without proper notice. If the wrongfully dismissed employee ought to have received reasonable notice of their dismissal, then they will instead be owed ‘pay in lieu of reasonable notice’ as compensation for the dismissal. 

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In an employment relationship, it is implied that the employer has the right to terminate the employment contract without cause by providing reasonable notice of the dismissal. An employee’s right to reasonable notice of dismissal is primarily intended to provide the employee with a fair opportunity to locate new employment and arrange their affairs before their existing employment comes to an end. 

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A termination clause is a term in an employment contract which sets out how much notice, or pay in lieu of notice, the employer is required to provide to the employee in order to terminate the contract without cause. When there is a valid termination clause in an employment contract, the employer is not required to provide reasonable notice of termination to the employee. Instead, the employer is only required to provide the amount of notice, or pay in lieu of notice, that is set out in the termination clause.

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A wrongful dismissal occurs when an employer dismisses an employee without cause and without reasonable notice of the termination, unless permitted by contract to do so.

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