What is wrongful dismissal?

The definition of 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:

  1. By specific reference to the Employment Standards Act;
  2. By stating a different way of calculating notice; or
  3. If there is no contract in writing, or if there is a flaw in way the contract is drafted or implemented, by implication by the courts. This category is called reasonable notice

Notice is not required in cases where the employee has given just cause to dismiss. Just cause is employee behaviour that is so harmful to the employment relationship that the employer is justified in terminating the employment immediately without any warning or notice. Just cause is difficult for the employer to establish.

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 law in British Columbia generally allows that an employer is entitled to dismiss its employees for any non-discriminatory reason, as long as it does 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. Often, 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 legislation that deals with certain aspects of employment termination. Mostly, this legislation sets 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. The concept of reasonable notice is an ancient common law principle, dating back hundreds of years in English law. Its application in Canada today has been refined to reflect the realities of modern workplaces and the importance of work in each person’s life.

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 of 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 termination was unfair. He was correct. After speaking with an employment 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 and you sense that it has resulted in unfairness to you, then fill out and submit our questionnaire form. If it seems that you may have a case for compensation, we will contact you to set up a consultation. You are welcome to phone our office and speak with our friendly staff to discuss your case and set up a consultation.

Time is of the essence

British Columbia and federal legislation imposes time limits on claims for wrongful dismissal and other types of legal claim. The limitation for wrongful termination, in general, is two years from the date the right to commence the action arose. An action - typically a Notice of Civil Claim - must be commenced in the appropriate court within the stipulated limitation time, or your right to make the claim afterward will be permanently lost.

The limitation period varies based on what kind of claim is in issue. For example, an unjust dismissal claim for federally regulated employees under the Canada Labour Code must be brought within 90 days.

Do not wait until the end of the limitation period to speak with a lawyer about your claim. Contact an employment lawyer today to learn your options and form a plan to advance your claim.

Learn more about wrongful dismissal