I THINK I’VE BEEN WRONGFULLY DISMISSED. WHAT ARE MY RIGHTS?Oct 3 2016
It helps if you have a basic understanding of what a wrongful dismissal is and how it’s viewed by the courts. Don’t confuse wrongful dismissal with just cause, which the law recognizes as an employer having sufficient grounds for termination (i.e. misconduct, theft, incompetence). You should also know that wrongful dismissal laws apply differently to federally regulated employees (those working in banks, telecommunications or certain transportation industries).
In British Columbia, an employer may dismiss any non-union employee as long as it is done legally and without discrimination. This means reasonable notice or severance must be provided in the absence of serious misconduct or just cause. In many cases, employers often believe that sufficient notice will have been deemed to be provided merely because they have identified and then subsequently addressed various factors relating to their own basis or rationale upon which a person has been terminated, such as they are not very efficient, or they don’t get along well with others in the workplace. This scenario is open to misinterpretation and miscommunication in and is often the root cause of wrongful dismissal litigation. Employers should be aware that the threshold for just cause is a relatively high one and it is rare that underperformance or a poor fit, standing alone, can justify termination without the requirement of the employer paying severance or providing adequate notice.
A wrongful dismissal occurs when an employer terminates an employee without providing sufficient notice, severance pay or a combination of both. Termination could also be said to occur “constructively” if an employer decides to change an employee’s duties, responsibilities, salary or employment status. Notice is determined by the amount of time, as notified in writing, in advance of the termination date. Severance is simply damages for the amount of wages or salary the employee would have earned during the period of reasonable notice. What constitutes sufficient notice, or severance, is an often debated question and is dependent upon a number of factors which can include the age of the employee, length of seniority, experience, skill and education, as well as the position of responsibility held by the employee in that particular workplace. The Employment Standards Act of British Columbia sets minimum standards for the amount of notice or severance employee must be afforded but those minimum standards are rarely applied in the common law. In addition, a written contract of employment may specify exactly how much notice and/or severance an employer must give to an employee being terminated as long as whatever is specified does not fall below the minimum standards established by the Employment Standards Act.
In many instances, employers are simply not aware of the legal requirements or ramifications of dismissing someone without reasonable notice and, as a result, will let someone go in a manner that is either unlawful, unfair or a combination of both, without realizing they have done so. Applying the common law regarding wrongful dismissal helps address these situations. This is where the services of a lawyer knowledgeable in employment law can prove to be invaluable and save the employer thousands of dollars in the long run.
As noted, provincial and federal statutes are in place to address the various aspects of employment dismissal. In most cases, these statutes set out the minimum requirements that an employer must follow when someone is dismissed. However, an employer is prohibited from creating contractual arrangements with employees that fall below the minimum standards established by the Employment Standards Act or the Canada Labour Code.
As stated above, the minimum requirements established by these statutes are rarely the same as what the courts consider to be reasonable notice. In fact, the laws governing reasonable notice are separate from those minimum standards and therefore it is always advisable to consult an employment lawyer who can help you navigate through these seemingly inconsistent laws.