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Wrongful Dismissal: Defenses An Employment Lawyer Can Use

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wrongful dismissal

Often, one of the most challenging decisions for any employer to make would be to fire an employee. Even if their employee wasn’t doing well, some employers still hold onto the hope that their employees might turn out to be like what they hoped them to be on the day they were hired.

There are times though when the employer is left with no choice but let go of an employee by firing them. If you’re looking for more information about wrongful dismissals, you can check out and other similar sites.  Or if you’ve found yourself terminated see this site for unemployment compensation.

4 Defenses

This business blog has four defenses that an employment lawyer can use for an employer facing a wrongful dismissal complaint. The employment was at-will, i.e. employees can be terminated by the employer.

1. Employment Was At Will

The first defense a lawyer can use against a wrongful dismissal case is that the employer terminated the employee at will. The reason for this is that employment is at-will in the state of California. This means that an employee can be fired by an employer anytime when the employer wills it. This kind of termination doesn’t need any reason. It could be for any reason or even without any reason at all.

Employers need to know how to handle potential wrongful dismissal lawsuits from terminated employees.

A termination can even be arbitrary in California. But this doesn’t mean that there aren’t laws to protect employee rights. For instance, an employer can’t terminate an employee if it will violate their employment contract. They also can’t fire an employee based on the discriminatory ground.

An employee may bring a wrongful dismissal lawsuit if they have a reasonable ground to believe that they were fired for being part of a protected class. To defend against this, an employment lawyer should ensure that the employee was terminated on grounds other than being a part of a protected class. They should also make sure that the employer didn’t violate any terms or conditions of the contract.

A wrongful dismissal case can only be filed against an employer if it fits any of the following categories:


  • Violated the provisions of any California or federal law when they terminated the employee
  • Breached the terms and conditions of the employment contract
  • The employer didn’t observe their existing policies on employment and termination

Termination of Employee

  • Termination was based on a discriminatory reason though the employer wouldn’t expressly admit it
  • The termination was done to retaliate against an employee who was merely exercising their rights or doing a protected activity
  • The termination violates public policy

2. Employee Was Dismissed For A Just Cause

The second defense that the employment lawyer can put up against a wrongful dismissal lawsuit is that the employer terminated the employee upon a just cause. There are numerous just causes which an employer can set up as a ground for terminating an employee.

An example is when the employee breached the terms and conditions of their contract. If an employee persists in going on with their actions that violate the employment contract, even after being called out, then the employer can fire the employee for a just cause. Another just cause is if the employee commits a serious violation of the company regulations and policies of the employer.

Best Practice

As a best practice, the employer should have all new employees go through an orientation on the work regulations and policies of the employer. They should also require the employee to read any new updates or changes on company policies before being implemented. The company should also call out the employee each time an employee commits an infraction or violation.

If the employer observed all these best practices, then they would be able to put up the defense that they terminated the employee out of a just cause, should the employee, later on, bring up a lawsuit for wrongful dismissal. As a best practice, employers should set the objective standards for performance evaluations before the employee starts their role.

3. Evidence Discovered After Termination Can Be A Defense

An employer who discovers evidence of any wrongdoing by an employee even after the terminated employee brought the wrongful dismissal lawsuit can still bring up that evidence in their defense.

If the misconduct discovered by the employer would have made it terminate the employee, the employer can still use this as a complete defense. This can be a complete defense against claims by the employee for wrongful termination. They can also use it as a defense against discriminatory refusal to hire or any allegations that the employer refused to accommodate a disability of the terminated employee.

Civil Case


The complete defense was the holding of the Supreme Court of California in the case of Salas v. Sierra Chemical Co. It was a case wherein Vicente Salas worked as a seasonal production line worker for Sierra Chemical from 2003 onwards. Salas suffered an injury and was forbidden to return to work until he was 100% healed. Salas filed a wrongful dismissal suit alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA).

However, Sierra Chemical discovered after the lawsuit was brought that the Social Security number given by Salas wasn’t his. It belonged to someone else who was a resident of North Carolina. They also found out that Salas had submitted a counterfeit social security card. Sierra Chemical said they wouldn’t have hired Salas or that they would’ve fired him right away had they known of his misrepresentations earlier.

Sierra Chemical moved for a summary judgment. They contended that Salas’ claims were barred by the after-acquired-evidence doctrine and unclean hands doctrine as a matter of law. The trial court granted the motion ultimately. The judgment was affirmed on appeal.

4. Employee Didn’t Meet Performance Standards

Another defense that the employment lawyer can put up is when the employee didn’t meet the performance standards set before they begin working for the company. As a best practice, employment lawyers should advise their clients to establish a procedure for progressing or moving forward with the dismissal of an employee. They shouldn’t abruptly dismiss or terminate an employee without any fair notice or warning that they might be terminated.

The employer should set up a process wherein they send notices and confirm from their employee that they received such notice. These notices should serve as warnings or reprimands to the employee that they would be meted a sterner warning or even possible termination if they fail to meet the performance standards.

With the warning, reprimand, suspension, and termination progression system in place, the employment lawyer can put up the defense that the employee was terminated for a just cause. Their specific defense would be that the employee failed to meet the objective performance standards mutually agreed upon between employer and employee at the start of the employment.


A prudent employer will have many defenses if a terminated employee brings up a wrongful dismissal lawsuit. The employer can set up the defense that the termination was at will. They can also say that they didn’t violate any state or federal laws. The employer can also set up the defense that the employee was dismissed for a just cause. They can say that the employee couldn’t meet the objective standards of performance on their work.