Wrongful dismissal in British Columbia can seem complex, but it is important for employees to understand their rights as workers. If an employee is working for a B.C. organization or company, they are protected by the province’s preeminent employment standards law, the Employment Standards Act of British Columbia (ESA).
What is Wrongful Dismissal?
The following provides a general overview of how the ESA defines wrongful dismissal for Canadians working in B.C. These rules establish standards for dismissal and include provisions to hold employers accountable if they fail to follow these guidelines. Any full or part-time employee can take their employer to court if they’ve been wrongfully dismissed.
When Does it Occur?
Wrongful dismissal occurs when an employer dismisses an employee without the required notice, required pay, or legally-recognized cause. In British Columbia, employers are required to supply sufficient notice or payment in lieu of notice (also known as ‘severance pay’) to an employee prior to dismissal. Proper notice is defined as:
- Notice that follows the Employment Standards Act.
- Notice as defined by an employment contract that meets or exceeds ESA minimums.
- By court judgment in B.C.
Terminating with Cause
Proper cause is defined as serious workplace offenses that harm the employer and their ability to do business. Dismissal for justifiable cause makes the employee ineligible for severance compensation in most cases. Employers can generally dismiss an employee for any reason, as long as they give sufficient notice or pay as required by the ESA. Dismissal ‘with cause’ includes serious employee misbehavior such as:
- Harassment (including sexual)
- Serious dishonesty that impacts the employer directly
- Persistent tardiness or excessive absence
- Serious and repeated insubordination
- Serious negligence or incompetence (that the employer has already attempted to remedy)
- Incapacity that prevents the completion of work duties
How to Know if You’ve Been Wrongly Dismissed
‘Wrongful dismissal’ is the legal term for an employee’s illegal termination. An employer who has wrongfully terminated an employee is considered to have wrongly dismissed them. While B.C. law establishes standards for dismissal, some employers may add termination clauses to employment contracts that violate the ESA. It is important to have a lawyer review these clauses, whether it’s prior to an employee signing a contract or immediately after they have been terminated. Employees have six months from their date of termination to file a claim under the ESA. They have two years from the date of termination to take their employer to court.
Employees are not automatically held to the employer’s clause simply because the employee signed a contract. The ESA provides guidelines on what a termination clause is permitted to contain. Just because a termination clause is present, does not mean that it is legally enforceable. This means the employee formerly under contract could still seek legal recourse after termination and may be entitled to further notice or compensation.
For a termination clause (also known as a severance clause) to be legally enforceable, the employer must reference ESA provisions in the clause to define the basis of their proposed terms. The minimum amounts of severance pay or notice required by employers, according to the ESA, are outlined here:
- For 3 months of consecutive employment, at least 1 week’s notice or pay is required
- For 12 months of consecutive employment, at least 2 weeks’ notice or pay is required
- For 3 years of consecutive employment, an additional week’s notice or pay for each additional year of service, up to a maximum of 8 weeks
Wrongful dismissal can also involve fundamental changes in employment terms that don’t include outright termination. In this scenario, employers may ignore agreed-upon contract stipulations or change them without employee consent. This is called constructive dismissal. Examples include a substantial change in pay, job responsibilities, or work hours that result in lower overall compensation or worsened working conditions. Any substantial change, including one the employee agrees to, could still entitle the employee to appropriate severance pay.
If you believe you were wrongly dismissed, contact the experienced lawyers at Stephens & Holman. We can help you understand your rights as an employee and if you are owed damages as a result of illegal dismissal. You only have so long to make a claim or take an employer who’s wronged you to court. We can help ensure you’re treated fairly by your employer and receive the compensation you deserve.