Wrongful dismissal in British Columbia is a commonly misunderstood term that describes when an employer terminates an employee without following the requirements of BC’s Employment Standards Act (ESA) or standards set by common law. Wrongful dismissal is far too common but thankfully, employees have rights that allow them to dispute a wrongful termination. Both full and part-time employees are protected by provincial and federal employment laws, including those that define what constitutes a lawful dismissal—and an unlawful one.
What to Do When Wrongfully Dismissed
Use this guide to determine whether or not you were wrongly dismissed or terminated. Understanding your rights as an employee can shed light on your legal options and how to fight a wrongful termination. Consider what supporting documents or notes you might have that you could add to an employment standards complaint or provide to a lawyer.
Consider If You Were Wrongly Dismissed
While employers generally have the right to terminate an employee at any time, they must do so with proper notice or severance pay for those dismissed without cause. Wrongful dismissal also includes employers unilaterally changing employment conditions or contractual agreements of both regular full or part-time workers. This is called constructive dismissal and is also legally prohibited by the ESA. Generally speaking, the term wrongful dismissal should not be confused with ‘unjust dismissal’ which refers to those terminated from a type of federal job.
Determine Why You Were Dismissed
Without cause dismissal occurs when an employer fires an employee simply because their services are no longer needed or the position is being closed. This often happens when a company’s financial situation has changed and they are trying to lower labor costs. Dismissing without cause is perfectly legal under BC law but the employee must be given either appropriate notice or severance pay.
In contrast to without cause termination, employees guilty of serious misconduct adversely affecting their employer can be fired ‘for cause.’ These employees are not eligible for notice or severance pay.
Reasons for firing for cause include:
- Criminal activity
- Willful and repeated insubordination
- Violation of company policy
An employer cannot simply declare that they are firing an employee for cause. They have to justify this decision according to the guidelines in the ESA, including explaining, in writing, why the employee was dismissed. Terminations that were originally made for cause are often deemed illegitimate and are actually without cause terminations that require due notice or compensation.
Consider if Your Performance Related Dismissal is ‘For Cause’
Employers cannot simply fire an employee for cause without notice unless they have a) Established a reasonable standard of performance; b) Clearly communicated that standard to the employee; c) Informed the employee that performance standards were not being met; and d) Assisted the employee in meeting those standards.
Determine if Severance or Notice Met Legally Mandated Minimums
The ESA sets standards for notice and compensation minimums but there is no predefined amount an employee can receive. Employees may have notice or severance compensation specified in their employee contracts. For those that do not have contracts, common law standards exist that can require notice or compensation above and beyond the minimum standards set by the ESA.
When there is no employment contract or the original, contractually defined terms of notice and severance are outdated, notice and compensation are dictated by the job the employee held, their length of employment, and other factors. Simply put, the higher position an employee holds, the more notice or compensation they are likely due.
Do Not Sign an Employer Severance Agreement
Employers will sometimes try to have employees sign a severance agreement that bypasses ESA rules. Don’t sign one. Even if you have, this supposed agreement may not hold up in court.
Start a Claim for Wrongful Dismissal
Under the ESA, BC employees have a right to file an employment standards complaint. Terminated employees have six months from their date of termination to file such a claim. Offending employers can be brought to court up to two years after wrongly dismissing an employee.
Take an Offending Employer to Court
The courts have previously determined that a wronged plaintiff (the terminated employee) can be awarded monetary compensation in the form of Aggravated Damages in addition to any severance owed. In one such case, an employer was determined to have acted unfairly, insensitively, and in bad faith resulting in financial compensation to the terminated employee.
Start Looking for a New Job
Terminated employees are required to actively look for a new job while their employment standards complaint is under review. This is termed mitigation of damages.
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 whether your situation warrants further action. You only have so long to make a claim or take an employer that wronged you to court. We can help ensure you’re treated fairly and receive all of the compensation you’re owed.