Employment and Wrongful Dismissal
Employment lawyers focus on the rights and obligations between non-unionized employers and employees. Some people may improperly be classified as an independent contractor – usually done by the employer as a way to save on paying EI and CPP contributions. The most common cases involve people who have been fired or laid off and either given no severance, or insufficient severance. Other frequent employment law cases that we get involve claims for constructive dismissal – and also intersecting claims under the BC Human Rights Code
As a starting point, the law implies into each indefinite employment agreement (i.e. not a 1 year placement to cover someone’s maternity leave) that if you are fired without cause (i.e. you didn’t steal) that the employer will give you reasonable notice so you can find replacement work at the same rate and in the same profession or role / location for someone else. That period of reasonable notice is typically measured in weeks and is called by most people “severance”. It is subject to the minimums under the Employment Standards Act. Your employment agreement may provide for a higher minimum than what is prescribed by law. Your employment agreement cannot give you less – it is considered to be a nullity and of no force and effect.
The minimums are 2 weeks after you finish your 3 month probation, and then 1 week per year of service up to 8 weeks. Those minimums are just that – the minimums and not the maximums. Again, your employment agreement may provide for a higher minimum.
If your employment agreement does not place a maximum on the amount of severance you are entitled to, the Courts will look at several factors (age, nature of employment such as manager vs warehouse grunt, length of service, and availability of other work) to determine what is reasonable notice in all the circumstances. This is sometimes called “common law severance” or “common law notice” As a rule of thumb – a mid-level manager gets 1 month per year of service. In times of recession even low level employees can be looking at 2+ weeks per year of service.
The maximum you can get through court can be up to two years – which is usually reserved for high level managers or key employees who have worked for a company for decades (and priests for some odd reason).
If the employer unilaterally makes a substantial change to the terms of your employment the law considers that you were effectively fired from that position and were given a new one. You can choose to accept working with the same employer in that “different” position or you can choose to pursue your legal rights at which point you will tarnish your relationship with your employer. Examples of constructive dismissal include: going from full-time to part-time (usually at least 1 day less per week is required to be considered significant), substantial change in location from where you work, or significant change in responsibilities.
This area is tricky and does truly benefit from a lawyer because it requires the employee to take a “leap of faith” and quit and not accepted the changes to their employment. If the Courts decide that the change was not significant enough to constitute constructive dismissal then the employee is not entitled to any notice because they quit.
Alternatively, in constructive dismissal cases the employer can actually sue for the employer’s breach of the employment agreement while continuing to work for the employer. While this leads to a bit of an odd dynamic at work, it is within the employee’s rights. An example where this might be workable is if you receive a paycut of 10%. That is usually insufficient for the Courts to say that there was a constructive dismissal, but you are still entitled to be made whole for the employer unilaterally cutting your pay for a reasonable period of time.
Lastly, employees may find that they are not giving promotions or other opportunities to advance because of discrimination based upon their age, gender, family status, and other protected grounds. Sometimes applicants find that they are not hired as a result of discrimination on a protected ground. Other cases may involve sexual harassment by an employer or manager, or failure of management to address sexual harassment by a co-worker.
Unless you are laid off for cause (such as insubordination, incompetence, stealing) you are entitled to the minimums. Laid off is a fancy word for fired/terminated without cause. You are entitled to the minimums even if you find a job the very same day for more money.
If you do not get the minimums the first step is to apply for EI and also to apply to the Employment Standards Branch – but only after you get your record of employment. You typically have a six month limitation period. The link to the ESB is here:
You do not need a lawyer to get your minimums. It is quite easy, especially if your record of employment indicates that the reason for the end of work was because of shortage of work. The minimums should be pursued even if your company closes down as there is the potential for the directors to be personally liable for the minimums.
If there is an assertion of cause by the employer, it is important to try and get a backup of all e-mails from your work e-mail as it relates to the event in question
For employers that are looking to expand their workforce we draft employment agreements to minimize your liability and ensure you comply with both Provincial and Federal legislation. We also offer due diligence services to discover if your prospective employee has previous dealings with the law in any way, shape, or form. We are happy to work directly with your HR team to pass along our knowledge so that their systems and processes get improved going forward.
Employers that are looking to downsize need to ensure that they do so in a way that does not expose themselves to claims for aggravated damages, and also that they do not trigger the group layoff provisions in the Employment Standards Act which greatly increase the minimum severance that employees are entitled to. Some of the largest exposure occurs when you have a long term employee who was hired on a hand shake and has no written employment agreement.
We also assist and undertake employee and regulatory investigations and work with your HR team or board of directors directly with respect to these sensitive topics. We assist employees deal with employees that have misappropriated funds, stolen time, or have given company trade secrets or your book of business to competitors.
For employees we typically get involved after they have been laid off as termination decisions are MADE swiftly without much, if any notice or opportunity for the employee to be heard. We are often engaged to review severance packages offered by their employers and are involved either directly, or behind the scenes in subsequent negotiations. For employees that have been given just the minimums under the Employment Standards Act, we work with you to obtain fair severance, either through negotiation or through a court proceeding and we also aim to achieve tax efficiency with all settlements so more money ends up in your pocket.
Employees who are facing sexual harassment or other forms of discrimination, or those that have been passed up for a job because they have been discriminated against contrary to the BC Human Rights Code have the option of proceeding the BC Human Rights Tribunal. Three big advantages exist to those forum, compared to a court proceeding. First, there is no filing fee and service on the other side is actually done by the tribunal itself. Second, the filing is not made public until approximately 30 days prior to your trial. This means subsequent employers cannot do a court record search to see if you have previously sued your ex-employer for wrongful dismissal. Lastly, the BC Human Rights Tribunal offers a free mediation service with a professional mediator. The costs of a regular mediation can easily extend past $2,000 and it is a great opportunity to bridge the gap to try and resolve your case. We have acted as counsel on numerous BC Human Rights Tribunal Cases, including one which presently has the second largest award for injury to dignity at $45,000.
Lastly, employees who are pursuing a wrongful dismissal or constructive dismissal claim should be aware that the law requires them to make reasonable efforts to mitigate their damages, and the employer is only liable to the employer to the extent that the damages could not have been mitigated. To that end, employees should keep a detailed log of their job search efforts including which jobs they searched for, applied for, and were interviewed for. Although the onus is on the former employer to prove you have failed to mitigate your damages, this task will be much easier if you can show you were consistently applying for suitable and comparable employment.
For employers we offer prompt and effective advice. We recognize that sometimes situations arise that require prompt action – particularly when it comes to a hiring or firing decision. Investigations can take weeks, or they may take months. We work closely with your HR and executive department to effectively conduct a thorough workplace investigation.
For employees offered a severance package, we can usually give a fair estimate as to what the range of damages a judge can award you after trial on the spot. For larger cases we have a network of experts that have been accepted by the Supreme Court that can quickly provide evidence based opinions as to the availability of comparable work in your area and related jobs. Negotiations can be resolved typically within weeks, and will almost invariably have a net positive outcome for the client, including structuring any severance package in a tax-efficient manner.
We also ensure that employees that are dismissed for cause or have been discriminated against we immediately take steps to preserve key documents and secure corroborating witness testimony. We also take steps to challenge any negative EI rulings so that at the very least you have some form of income while your case moves forward.
We will make every effort to resolve your case prior to having to file a claim in Court so that your claim remains outside of the public eye and not discoverable by future employees. We also aim for tax efficiency in all settlements so that you have the most post-tax dollars in your pocket, as well as a favourable reference to assist you in your job search.
For employers we usually charge hourly for both transactional work – such as drafting employment agreements, releases, as well as for litigation work – such as if a former employee seeks further severance. For larger clients we offer a classic retainer where we can effectively become your external in-house counsel for such matters. A flat monthly rate will ensure you have access to advice and representation without having to pay an hourly rate.
For employees that are looking to review any severance package offered and to engage in negotiations we typically charge an hourly rate. For wrongful dismissal cases, the reality is that most employees cannot afford to pay an hourly rate since they often comes to us after being fired and before they find their next job. We offer wrongful dismissal, constructive dismissal, and BC Human Rights cases on contingency – even if you have been dismissed for alleged cause. For cases that are within the monetary limit of small claims court, we offer all cases on a 40% contingency which does not change even if we have a multi-day trial. For matters that exceed the Small Claims monetary limit, we offer cases on a 1/3rd or 33.33% contingency.
Typically all legal fees that you pay to assert a claim to employment income are tax deductible, and we have many ways to come up with tax efficiency in any settlement which results in more post-tax dollars in your pocket. For matters in Supreme Court, if you are successful you will usually be entitled to an award of costs which will offset a sizeable portion of your legal fees.
Contact us either at (604) 259-6200 or using the form below for assistance with Employment and Wrongful Dismissal
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.