Getting fired or “let go” from an employer is not a pleasant scenario. This is especially the case if an employer fails to abide by their legal obligations. This post will address wrongful dismissals and the process for filing claims. Please see below for more details on what constitutes a valid wrongful dismissal claim (and what does not), as well as some details to keep in mind for anyone thinking about submitting such a claim.
What Is A Wrongful Dismissal Exactly?
Employees in non-unionized workplaces do not have the protection from losing their job set out in many collective agreements. While unionized employees are limited to losing their jobs in the circumstance of lay-offs for lack of work or just cause, non-unionized employees can lose their jobs for nearly any reason or no reason at all. Employers need to avoid breaching three main pieces of legislation when terminating an employee: the Employment Standards Act, the Human Rights Code, and the Workers Compensation Act. Federal employers and employees would be concerned with the Canada Labour Code. While it is rare for a non-unionized employee to be reinstated, these pieces of legislation do have some potential for such an order. If an employer has terminated an employee’s job without breaching these statutes, then there is no legal mechanism to force an employer to take the employee back.
While this legal fact does not sit well with many employees, the courts have softened the burden by implying into every employment relationship an obligation on employers to provide “reasonable notice” to an employee that their job is ending. Reasonable notice is determined based on factors such as age, tenure, type of position, availability of alternative position, whether a person was recruited, whether the parties agreed in a contract to the extent or reasonable notice, etc. The maximum duration of “reasonable notice” in British Columbia is 24 months. If an employer terminates an employee’s job and gives them sufficient notice (or pays them salary in lieu of that notice), then they have properly terminated that employee. If an employer has not provided sufficient notice then the termination is called “wrongful”. The only time employers are not required to provide reasonable notice is when the employer has “just cause” to fire the employee.
What Is “Just Cause” For Firing Employees?
An employer may have just cause to fire an employee if he/she;
- Breach of trust, theft, violence;
- Failure to abide workplace safety standards;
- Ignores or fail to follow workplace policies and protocols;
- Insolence, vulgar language, or disobeying the employer;
- Engaging in a conflict of interest with the employer;
- Failure to attend work;
- Lying and dishonesty; or,
- Incompetence after being given repeated warnings and opportunities to improve.
Whether an employer has “just cause” is a context specific scenario that must be proven by the employer. There will be an examination of the type of employee, the expectations of both the employee and the employer, the type of misconduct, and whether other less serious forms of discipline were sufficient.
No Just Cause? Employees Still Have Rights To Notices and/or Pay
If there is no “just cause” then employees have two primary sources to seek wages. They can consider claims under the Employment Standards Act or they can sue for wrongful dismissal in the courts.
The choice between these two scenarios is difficult to appreciate as there are a number of factors to consider, such as:
- Does the employee have a written contract of employment that was signed prior to starting work and, if so, does that contract set out the notice required?
- What is the employee’s likelihood of finding a similar type job right away? If it is not likely then the employee may wish to seek legal consultation on the level of reasonable notice to expect.
The Employment Standards Act sets the floor of notice that an employee will receive upon losing their employment. Many employment contracts will set reasonable notice as being the same as in the Employment Standards Act and doing so is legal. However, a contractual provision that sets the notice lower than the Employment Standards Act – even hypothetically – is void because employers cannot contract out of these minimum standards.
The Employment Standards Act states how much minimum notice or pay instead of notice (knows as compensation for length of service) is required for employees dismissed without just cause. An employer can give notice or pay, or a combination of the two – as long as the total is the right amount.
- no notice or pay is required if worked less than 3 months;
- at least 1 week’s notice or pay required if worked 3 months in a row;
- at least 2 week’s notice or pay required if worked 12 months in a row;
- an additional week’s notice or pay required for each extra year of service; and,
- the maximum is 8 weeks.
These notice and pay amounts under the Act are minimum amounts. Employees may be entitled to more.
Filing Employment Law Claims
If you think that you were wrongfully dismissed and wish to seek reasonable notice then you must do so through the courts and you have 2 years from the date of your dismissal to file a claim. If you wish to seek your entitlements under the Employment Standards Act, then there are different time limitations as you need to file a claim with the Employment Standards Branch within 6 months of losing your job.
You must follow these time limitations as a failure to file before the expiry of the limitation period may mean that your claim is extinguished, regardless of the validity of the claim.
The Bottom Line on Wrongful Dismissal Claims
Every employee has rights in British Columbia. These are set out in their collective agreement, the Employment Standards Act, their contract of employment, or the common law. If an employer does not have “just cause” to fire an employee, the employee being let go must have received proper written notice or proper severance compensation. A failure to do so is a wrongful dismissal.
We highly recommend you speak to and work with a legal professional if you find yourself in this situation to increase your chances of success. Please contact Hutchison Oss-Cech Marlatt today to get in contact with one of our lawyers right away if you need counsel.