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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We continue to receive many questions from employers and employees about terminations and lay-offs, so in this blog post we provide an overview of the key notice provisions in the BC Employment Standards Act (“ESA”) that may assist you during these uncertain times. The minimum notice periods identified in the ESA may be in the form of working notice or payment in lieu of notice. In particular, we take a look at rarely used section 65(1)(d) of the ESA which states that an employer is not required to provide notice of termination or pay in lieu of notice to its employees if it can prove that COVID-19 has been an “unforeseen circumstance” that has made continuing the employment contract “impossible”.
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Many (if not most) employers routinely check the social media profiles of job candidates. There are good business reasons for doing so. However, checking candidates’ social media is likely a breach of BC’s privacy legislation. In this post, we take a closer look at why the privacy legislation likely precludes social media searches during the hiring process.
