What’s So Wrong About Wrongful Dismissal?
By: Michelle QuinnUnfortunately, quite often terminated employees mistakenly believe that because their employer has offered them the minimum amount of severance pay (notice) under the BC Employment Standards Act that their legal entitlement ends there. Typically, that is not the case. In this post, we look at what it means to be wrongfully dismissed and whether a terminated employee is entitled to reasonable notice.
Under the BC Employment Standards Act, in order to be eligible for termination pay or notice of termination, an employee must have worked at least three consecutive months for their employer. So you have an idea, here is a summary setting out the minimum amount of working notice or termination pay in lieu of notice required:
- 3 months of consecutive employment, at least 1 weeks’ notice or pay is required
- 12 months of consecutive employment, at least 2 weeks’ notice or pay is required
- 3 years of consecutive employment, an additional week’s notice or pay for each additional year of service, up to a maximum of 8 weeks
What terminated employees do not realize is that, in addition to the minimum statutory notice requirements, they may be owed a reasonable amount of notice at common law, and by common law I mean what judges in courts across Canada say is the notice an employer owes the employee at the point it chooses to terminate the employment relationship.
In the absence of an express agreement, the common law will imply a reasonable notice period, which cannot be shorter than the statutory minimum under the Act. One of the first few questions our lawyers ask a terminated employee is: did you sign a written contract, or offer letter when you started your employment? If the answer is “yes”, does the written contract or offer letter contain a termination or notice provision which limits your entitlement to notice?
Wrongful dismissal law in B.C. permits an employer to dismiss its employees for any non-discriminatory reasons as long as they do so lawfully. The only way to lawfully dismiss an employee is to provide sufficient reasonable notice. Failing to provide reasonable notice constitutes wrongful dismissal and could expose an employer to a wrongful dismissal claim and liable to pay damages to the dismissed employee. Put more simply, it is “wrong” for an employer to provide inadequate notice to a terminated employee.
So, what then is reasonable notice? How do we determine whether an employee should have been given two, three or six months of notice? What severance package should a terminated employee receive and what is sufficient?
To help with this assessment, the Courts in B.C. consider a number of factors particular to each individual employment situation to calculate reasonable notice. The primary factors considered are:
- Character of employment
- Age of the employee;
- Length of service; and
- the availability of similar employment
Each case will turn on its own particular facts. The weight to be given to each factor will vary according to the circumstances of each case.
If you have been terminated and need some legal advice on the adequacy of your severance package please feel free to contact me at mquinn@rbs.ca.
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Proving a constructive dismissal claim is no easy feat for an employee as Mr. Baraty found out in the BC Supreme Court decision of Baraty v. Wellons Canada Corp. where the Court dismissed his claim that he had been constructively dismissed from his employment. In this case, the Court decided that Mr. Baraty had “erroneously believed” that he was being pushed out, however, an objective review of the surrounding facts led the Court to the opposite conclusion…
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The Canada Emergency Response Benefit (“CERB”) was introduced by the federal government in response to the pandemic in 2020. The program provides financial support to Canadians impacted directly by COVID-19. Terminated employees frequently ask whether these CERB payments are deductible from wrongful dismissal damages. In this post, we reviewed two recent BC Supreme Court decisions where the Court found that the payments were deductible, in particular, the CERB payments “raise a compensating advantage” issue. If the CERB payments were not deducted, the plaintiff would be in a better position than he/she would have been if there had been no breach of the employment contract.
