What is Wrongful Dismissal?
Wrongful dismissal occurs when an employer dismisses an employee without giving sufficient notice. The required notice will be set out in the employment contract in one of three ways: by specific reference to the Employment Standards Act, by stating some other means of calculating notice, or by implication by the courts. Just cause is employee behaviour that is so harmful to the employment relationship that the employer is justified in terminating employment immediately without any warning or notice.
Employee Unfairness and Notice
Most people can sense when they have been dealt with unfairly by their employer. This sense of unfairness becomes most acute at dismissal from employment. Many employers are simply ignorant of the requirements of the common law in an employment termination situation and terminate employment in a manner that is unlawful and unfair. The common law of wrongful dismissal is meant to address that unfairness. The common law requires the employer to provide the dismissed employee with what is known as “reasonable notice“.
Often, the employer, having acted in ignorance of the requirements of the common law, merely needs to be told with authority that the dismissal is wrongful, and told what they must do to correct the wrong and make it right. This is where your wrongful dismissal lawyer comes in.
Basics of Wrongful Termination
The wrongful dismissal law in British Columbia generally allows that an employer is entitled to dismiss its employees for any non-discriminatory reason, as long as they do so lawfully. The only way to lawfully dismiss is to provide sufficient notice. The employer must identify and address a number of potential factors, and these factors relate to things the employer provide to the dismissed employee upon termination. Central to these factors is the concept of reasonable notice. Most employers fail to understand their obligations at common law, and therefore fail to provide reasonable notice to the employee.
In each Province and Territory, and for Canada federally, there is statutes or legislation that deal with certain aspects of employment termination. Mostly, these statutes or legislation set out a minimum requirement the employer must adhere to at termination of employment. The minimum requirement set out in the legislation is not the same as reasonable notice in most cases. Reasonable notice is a creation of judges, or common law, and operates entirely separately from statutory requirements, which are created by provincial and federal lawmakers.
Example of wrongful dismissal
The following BC case illustrates the difference between what the legislation and the common law provide in the same case. The employee was of average age and he worked as a sales manager, and worked for a period of only seven months for the employer prior to dismissal. Under the Employment Standards Act for British Columbia, the employee was entitled to one week’s pay at the point of termination. This is the pay in lieu of notice he was given by his employer at termination. The employee sensed this was unfair. He was correct. After speaking with a termination lawyer, a wrongful dismissal claim was commenced and at trial, the Court awarded the dismissed employee seven months of his pay as the reasonable notice that the common law called for in the circumstances. Not every case will end up this way, but the example is illustrative of the significant difference between the minimum standard set out in legislation, and the common law standard of reasonable notice. Employment lawyers operate in the common law arena.
What You Can Do As An Employee in BC
If your employment has been terminated by your employer and you sense that it has resulted in unfairness to you, then fill out and submit the questionnaire form to us. Our lawyers will review your details and you will receive our initial no-charge response.
Time Is Of The Essence
Within the Province of British Columbia the Limitation Act R.S.B.C. 1996, c. 266 places a time limit on claims for wrongful dismissal. The limitation for wrongful termination, in general, is two years from the date the right to commence the action arose, and the Act requires that an action be commenced in the appropriate court within the stipulated limitation time, or the right to make the claim afterward will be permanently lost. If you are unsure about what any of this means, then please discuss the facts with the lawyer of your choice or contact us immediately.