Employment Law and Wrongful Dismissal (for Employees)
Ms. Newman represents both employers and employees. This article contains information to assist employees with understanding their rights.
Employees’ Frequently Asked Questions
- 1) What is “wrongful dismissal”?
- 2) Do I even have an employment contract?
- 3) Who has a claim for wrongful dismissal?
- 4) What is “just cause”?
- 5) How do I know if I’ve been given reasonable notice?
- 6) What happens if I get another job?
- 7) How do I get help?
1. What is “wrongful dismissal”?
“Wrongful dismissal” is a legal definition. If your employer fires you without good reason (“just cause”) you must be either given proper notice that your job will soon end, monetary compensation, or a combination of the two. This is called “reasonable notice.” Many people refer to the monetary component as “severance pay.”
It doesn’t matter if you believe that your termination is unfair – it likely is. The law allows parties to break their contracts, and employment contracts are no different. It is only the failure of the employer to give reasonable notice to its employee that makes the dismissal “wrongful” at law. In British Columbia, when an employer lets go an employee, the notice as set out in the Employment Standards Act must be followed, as a minimum. The ESA allows for a maximum of 8 weeks pay. Obviously, this may not be adequate, and at trial, a judge may award up to 24 months of pay.
If you belong to a union, your collective agreement may provide notice periods, but speak to your union representative.
2. Do I even have an employment contract?
If you have a job where someone pays you, you have an employment contract. It need not be written down and signed by both parties. In some cases, you may be called an independent contractor, or at least that’s what your boss says. However, this term is determined by the facts and circumstances of your employment, not on the name.
Often, company policies and procedures are considered part of your contract. “Standard practices” of the company may also be considered part of your contract. Depending on your position, many provisions of the Employment Standards Act may form part of your contract.
The bottom line is that if you are working and getting paid, you are a party to a contract. Every contract carries with it obligations. When a party fails to fulfill its obligations, then that party has breached the contract. A failure to provide adequate notice to a terminated employee is a breach of the employment contract. Just because the contract is not written on paper, doesn’t mean the contract can’t be breached.
3. Do I have a claim for wrongful dismissal?
Most people that are terminated from their jobs are usually entitled to reasonable notice, but there are exceptions. You will likely not be entitled to reasonable notice if you quit. Prior to quitting your job, you should consult your lawyer to determine the consequences of ending your employment contract.
4. What is “just cause”?
“Just cause” is also a legal definition. If you have breached a material term of your employment contract, your employer can fire you for just cause, without reasonable notice, or any notice at all. Just cause grounds are very serious, such as theft and slander. A personality clash is not just cause. Likewise, a downturn in business is not just cause. If an employer denies that he has to provide his employer with reasonable notice, he must be prepared to justify the termination – legally – if not, the termination is wrongful.
5. How do I know if I’ve been given reasonable notice?
Notice is the amount of time that your employer must give you before you actually must quit working. If you are required to work during your notice period, you must be allowed time to find other comparable work. If your employer provides you with severance pay, it should be equivalent to what you would have normally earned before being fired, including benefits. In some circumstances, you may be entitled to up to 2 years of pay, depending on the type of job you have, the length of your employment, your age, and the job market.
6. What happens if I find another job?
You have a duty to find comparable work, but you need not take any job (unless you deem it necessary). If you find another job at the same or better pay and working conditions, your entitlement to compensation may be reduced, or you may not be entitled to any compensation, at all. The important thing to remember is that you have a legal duty to seek other employment, to minimize your losses. If your former employer can prove that you have failed to seek other employment, your entitlement to severance pay may be reduced.
7. How do I get help?
If you are having trouble with your employer or have been fired, it is important to understand your rights. When an employer treats you unfairly, a lawyer can provide you with advice. Sometimes all that is required is a demand letter from your lawyer to your employer. In other cases it will take a lawsuit. If you are a member of a trade union, talk to your union representative. If you are not a union member, a lawyer can help you to determine how you should pursue compensation.