Wrongful Dismissal

Employee Rights when Terminated

Wrongful Termination

Employee Rights when Terminated

 

Your rights as an employee if you have been terminated

by Tim Louis

Being terminated without cause or dismissed from your employment can be one of the most stressful experiences you have ever encountered. You may be tempted to accept whatever compensation your employer is offering you. Do not do so without first taking the advice of an experienced employment lawyer.

If you have been terminated by your employer, the first question that needs to be answered is: Were you terminated with cause or without cause?

Employee rights when terminated with and without cause

If your employer had cause to terminate your employment, then you do not have a right to severance pay. A few of the more common reasons for termination with cause include fraud, chronic refusal to follow directions from your employer, intoxication while working, and establishing your own business in competition with your employer. I frequently act for clients who have been terminated by an employer who alleges cause. However, once I commence a lawsuit on behalf of my client, it soon becomes apparent that my client’s former employer did not have cause.

If your employer did not have cause to terminate your employment, then you are entitled to severance pay.

If you are entitled to severance pay because your employment was terminated without case, then the next question is whether the amount of your severance pay should be calculated based on statutory law or common law. Many of my clients are confused by the difference between these two types of law -which entitle an employee, terminated without cause, to very different amounts of compensation.

Statutory law is law based on a statute -in the case of employment law, the Employment Standards Act. This act entitles an employee, terminated without cause, to severance pay as follows:

  • after 3 consecutive months of employment – one week’s wages
  • after 12 consecutive months of employment – 2 weeks wages
  • after 3 consecutive years of employment – 3 weeks wages plus 1 additional week of wages for every year of employment to a maximum of 8 weeks wages

Common law is law based on all Court judgments – in this case, lawsuits where an employee successfully sued their employer alleging the termination of their employment was without cause. Under common law, the amount of severance pay awarded in each case is different based on many factors such as: age of the employee, length of the employment and type of position. As a rough rule of thumb, the common law entitles an employee terminated without cause to one month’s severance pay for every year of employment.

As you can see, the amount of severance pay you are entitled to, if your employment is terminated without cause, is more under common law than it is under statutory law.

Making a claim for wrongful termination

Making a claim for wrongful dismissal means that you need to know your employee rights when terminated.

If you decide to make a claim for severance pay under the Employment Standards Act, [statutory law], you may do so without a lawyer. The British Columbia Labor Standards Branch will investigate your case to determine whether or not your employment was terminated without cause.

If they find that your employment was terminated without cause, they will issue an order directing your employer to pay you severance pay as described above. Some terminated employees will choose the option of statutory law over the common law option as it is usually quicker and does not usually require a lawyer.

If you decide to make a claim for severance pay under common law, you will almost certainly require a lawyer as this choice involves filing a lawsuit in Court. Although this option can typically take longer than filing a complaint with the Labor Standards Branch and will be more expensive as you typically require a lawyer, you may receive significantly more severance pay.

Finally, many of my clients are unaware of the fact that their entitlement to severance pay is reduced by the amount of any income they earn after their wrongful termination during the time period covered by the severance pay. In other words, if the Court awards you severance pay representing 6 months of employment, then any income you earned in the first 6 months after your wrongful termination will be deducted from the amount you would have otherwise been entitled to.

Free consultation

If you have any questions about your termination or about the other many areas of employment law that I practice, such as non-competition clauses, harassment, your employer contracting out of the common law, or your employment contract, give me a call on my cell 778-855-3494. I really enjoy going to bat for the proverbial underdog.

N.B. Most employees work for employers governed by Provincial law. However a relatively few types of employers, such as banks and airlines, are governed by Federal law. This blog provides information for employees who work for employers who are governed by Provincial law.

Learn more about employee rights when terminated

Learn more from the Employment Standards Act.

Wrongful Termination

Wrongful Termination

by Tim Louis

If your employment has been terminated by your employer , you are entitled to severance pay unless your employer is able to prove they had cause to ‘let you go’. Cause would include: theft, insubordination, and chronic tardiness. If your employer did not have cause, then you are entitled to severance pay. The amount of severance pay you are entitled to is governed by two different types of law – statutory law and common law.

Wrongful Termination

Generally speaking you are entitled to more severance pay under common law than under statutory law.

Employment Law: What is the difference between Statutory and Common Law?

Statutory law is law created by government when it passes a statute. If your employer’s type of business is governed provincially, then British Columbia’s Employment Standards Act is the statute. If your employer’s type of business is governed federally, then federal law applies. Most types of businesses are governed provincially. Banks and Airlines are two examples of types of businesses that are governed federally.

Common law is law created each time someone goes to Court. Over time, literally thousands of cases are decided by a Court. In each case, the judge decides how much severance pay to award by looking at many different factors such as length of employment and age of the terminated employee.

What is Considered Wrongful Termination in British Columbia

In British Columbia, the Employment Standards Act provides you with the following statutory entitlement to severance pay if you have been terminated without cause. Being fired, or let go without cause is known as wrongful termination or wrongful dismissal.

  • After 3 months of service: 1 weeks’ pay
  • After 12 months of service: 2 weeks’ pay
  • After 3 years of service: 3 weeks’ pay, plus 1 week of pay for each additional year of employment (to a maximum of 8 weeks)

In British Columbia, the common law will entitle you to severance pay in the range of 4 to 6 weeks severance pay per year of employment depending upon many different factors as described above.

Remember that you are not entitled to any severance pay -either statutory or common law – if your employer can prove they have cause to terminate your employment.

Can I Sue for Wrongful Dismissal?

However just because your employer says they have cause to terminate, doesn’t mean they do. I had a case recently where I sued my client’s former employer. In their Response to Civil Claim, the employer alleged just cause. They listed numerous allegations against my client, including diverting customer money into my client’s own pocket.

However, as soon as I demanded particulars of each and every allegation from the employer’s lawyer, their case began to fall apart. I ended up forcing the employer to pay my client a very significant amount of money due to wrongful termination.

Wrongful Termination: What am I entitled to?

  • If your employer’s business is covered by provincial law, then you are not entitled to your job back if your employer did not have just cause. All you are entitled to is severance pay.
  • If your employer’s business is covered by federal law, you may be entitled to your job back.
  • If you have been terminated, it is very important you seek legal advice from an experienced labor lawyer.

I have been Wrongfully Dismissed – what are the next steps?

If you have been wrongfully terminated, contact Wrongful Dismissal lawyer Tim Louis for a free telephone consultation.

Don’t accept a severance offer, or an exit agreement before first talking to an employment lawyer.

Tim is on your side to fight for you and get the compensation you deserve or file a compliant.

Contact Tim Louis today at (604) 732-7678!

Learn More about Your Rights

You need to know your rights, in order to ensure you are treated with the respect you deserve. Employment in British Columbia falls under the Employment Standards Act.

Here are some links to learn more.
Employee Rights in British Columbia
Employment Standards Act – BC Law
Workplace Rights
Wrongful Dismissal

Termination Without Cause: Determining Reasonable Notice

termination without cause

Termination Without Cause – Wrongful Dismissal

When an employee is terminated without cause, it means they are being let go for reasons such as cost cutting, restructuring, or realignment. All employees in Canada are entitled to a certain amount of notice (or pay in lieu of notice) if an employer without just cause terminates them. This compensation is in place to protect employees left without employment with no warning or any type of income.

If you have been terminated without cause in BC, you may have several questions regarding this topic. Below we have compiled some helpful information to help you understand how much you are entitled to when terminated without cause and when payment is required.

How Much Are You Entitled to When Terminated Without Cause in BC?

Termination without cause is perfectly legal in BC if the employer provides you with reasonable notice of termination. Reasonable notice can be given in the form of working notice, pay in-lieu-of working notice or both.

If a BC employer does not provide an employee with reasonable notice, adequate compensation must be issued. If a BC employer fails to do so, a wrongful dismissal case could be brought against them. How much payment is required depends on the length of time an employee was employed:

  • After three consecutive months of employment: one week’s pay must be provided
  • After 12 consecutive months of employment: two weeks’ pay must be provided
  • After 36 consecutive months of employment: three weeks’ pay must be provided
  • For each additional year: a week’s pay (up to a maximum of eight weeks) must be provided

How Much Pay Are You Entitled To When Terminated Without Cause?

There are two types of law – Statutory Law and Common Law.

The statutory requirements for notice are as follows:

  • One week’s pay must be granted after 3 consecutive months of employment
  • Two week’s pay must be granted after 12 consecutive months of employment
  • Three weeks’ pay must be provided after 36 consecutive months of employment.
  • A week’s pay up to a maximum of 8 weeks must be granted for each additional year.

According to common law, reasonable notice is based on length of service, type of position (including salary), age of the employee, and availability of similar employment at the time of termination. Under these requirements, reasonable notice may amount to at least one month per year of employment.

The Period of Common Law Notice Can Be Varied – BC Employment Law

Under common law, severance is not just one or two weeks’ compensation — an employee terminated without cause can be owed up to 24 months of pay. However, it may be stipulated in the original employment contract when hired by the company. This contract may require less notice of termination than common law requirements, but not less than the entitlements listed under the BC Employment Standards Act/Statute Law. 


Have You Been Terminated Without Cause in BC?

If you are involved in a termination without cause situation, it is important you speak with Tim Louis, an experienced employment lawyer, to ensure that your employment rights are applied, and you have been provided with fair compensation. Hiring a lawyer that specializes in employment law will help ensure that you receive a””fair settlement. If you have been let go by your employer or require a severance package review, contact Tim Louis Law today by calling 604-732-7678 or email timlouis@timlouislaw.com, and we will set you up with a no-obligation telephone consultation.

Learn more about termination without cause in the BC Employment Standards Act

 

 

 

 

 

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What is Wrongful Dismissal?

Wrongful Dismissal

What is Wrongful Dismissal?

If you’ve been terminated by your employer, or just want a clear understanding of your rights when it comes to wrongful dismissal law in BC, you’ve come to the right place.

We always encourage employees to seek advice from an experienced legal team that specializes in employment law; however, we also like to educate our clients so they become more familiar with key terms to gain a broad understanding of laws surrounding wrongful dismissal claims.

 

What is Wrongful Dismissal?

A wrongful dismissal occurs when an employee is terminated by their employer without being provided any reasonable notice.

Generally, there are 3 types of wrongful dismissal scenarios:

  • An employer terminates employment without cause and refuses to pay adequate compensation.
  • An employer terminates an employee for cause and fails to pay compensation.
  • An employer alters terms and conditions of employment and ‘constructively dismisses’ an employee by creating a hostile, toxic and intolerable work environment — resulting in the employee being forced to resign from their position.

If you are an employee in BC, your rights are protected by both the Employment Standards Act of British Columbia and federal law — however, it is important to note that a wrongful dismissal claim does not occur simply because an employer has terminated an employee for an illegitimate reason. For example, an employer may have terminated an employee for financial reasons, when in fact there is no basis for doing so.

An employer does not legally have to be completely honest with their reasons for termination, as long as they have just cause to terminate or provide reasonable notice of termination or salary in lieu of notice.

The notice period an employee is entitled to will vary depending on these factors:

  • Length of employment
  • Age of the employee
  • Type of position (including salary)
  • Availability of similar employment in the job market at the time of termination

 

What is ‘Just Cause?’

Under Canadian law, an employer can legally apply just cause termination in the event of serious employee misconduct such as theft, sexual harassment, dishonesty, conflict of interest, incompetence, insubordination, and other types of highly inappropriate conduct during employment. Some “just cause” actions are easier for an employer to prove than others.

Under these circumstances, an employer can terminate an employee immediately without any requirement to provide:

  • Warnings
  • Reasonable notice
  • Severance pay
  • Pay in lieu of notice

 

Proving Wrongful Dismissal

The first thing you will want to do is prove that you were an employee of the company.

Generally, this can be done by providing:

  • Your letter of termination
  • Your Record of Employment (ROE)
  • Pay stubs
  • Proof that you were terminated without adequate notice.

Moving forward, your employer must prove that you were dismissed for ‘just cause.’

 

Do Not Sign a Severance Offer

When you are terminated, your employer may offer you an exit agreement and or offer you a severance package to sign off on, with a short deadline. If you feel you have been wrongly dismissed, do not sign a severance offer before speaking to an employment lawyer. Your employer cannot legally impose a deadline on your full severance entitlements.

Legally you have 2 years following termination to receive your severance pay — if you sign off on a severance package from your employer, you have also signed away your right to pursue legal action for severance pay under common law.

 

Timeline for Filing a Wrongful Dismissal Case in B.C.

To file a claim under the B.C. Employment Standards Act, you have 6 months from the termination date. To sue your employer, you have 2 years from the date you were let go. This goes for employees who work full-time, part-time, or an employee on probation

 

Contact A Trusted Employment Lawyer

If you feel you may have been wrongfully dismissed, it is important to obtain legal advice as early as possible. If you or someone you know has experienced a wrongful dismissal, Tim Louis Law is here to help. We are on your side and will fight hard to ensure that our clients receive full compensation. For more information or to set up a free consultation with Tim Louis & his compassionate, trusted team of experts, call 604-732-7678 or email timlouis@timlouislaw.com

Source: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/00_96113_01

 

 

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Terminated Without Cause?

Wrongful Dismissal

What Are You Entitled To If You Are Terminated Without Cause?

When an employee is terminated without cause, it means they are dismissed for reasons other than workplace misconduct or breach of contract, which would, in that case, be defined as ‘termination with just cause.’

Oftentimes termination without cause occurs during times of economic downturn or when a company is trying to cut costs or chooses to engage in restructuring or realignment. As long as the reason for the termination or lay-off is not discriminatory, such actions are completely legal.

If your employer follows the employment law, and manages the termination correctly, including giving you reasonable notice of termination, meaning notice or pay in lieu of notice, you will have sufficient time to seek other means of employment or at least be compensated financially for your loss of work.

If the employer does not follow the correct legal procedures, a wrongful dismissal case may result, which means it would be time for you to seek the services of an employment lawyer to make a claim for compensation.

How much payment are you due under statute law when terminated without cause?

Payment due is dependent on the duration of your employment at the company. Nevertheless, the following minimum statutory requirements apply:

  • After three consecutive months of employment: one week’s pay must be provided
  • After 12 consecutive months of employment: two weeks’ pay must be provided
  • After 36 consecutive months of employment: three weeks’ pay must be provided
  • For each additional year: a week’s pay (up to a maximum of eight weeks) must be provided

How much payment is your due under common law if you are terminated without cause?

At common law, you are entitled to substantially more than under statute law. Each case is different depending on age and skill set. Generally speaking, you are entitled to between 4-6 weeks of severance pay per year of employment. However, your employer can deduct from this amount any income you earn during this period of time. Even if you earn no money during this time, the court will make a deduction if you failed to make reasonable efforts to look for employment.

When is a payment not required when terminated without cause?

Pay is not required when terminated without cause if reasonable notice is provided. Under common law, reasonable notice is based on length of service, the age of the employee, type of position and the availability of similar employment at the time of termination.

Under these guidelines, the reasonable notice might amount to at least one month per year of service. This may also be specified in your original employment contract. However, even though your contract may require less notice of termination than common law requirements, it cannot be less than the entitlements listed under the BC Employment Standards Act.

As long as these requirements are met, no payment is necessary in termination without cause cases.

Pay or notice is not required in the following circumstances:

  • You resign or retire
  • Your contract ended
  • You have worked at the company for less than three consecutive months
  • You worked on-call (freelanced), were hired to perform specific work in 12 months or less, or were hired temporarily
  • An unexpected event makes it impossible for the planned duties to be carried out
  • You refuse to accept reasonable alternative employment
  • You are terminated for just cause

The reasonable notice and compensation laws governing termination are clear. All employers and even employees should understand them; otherwise, the laws might be breached, and unfair dismissal cases result, which calls for court action.

Filing a wrongful dismissal claim in Vancouver

If you were terminated without proper notice or pay and wish to file a wrongful dismissal claim, contact us at Tim Louis and Company. Our experienced Vancouver employment lawyer will evaluate your case and guide you through the process.

 

 

 

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Termination Without Cause While on Long-Term Disability

Termination Without Cause

Termination Without Cause – while on long-term disability

The laws covering whether you can be terminated while recovering from long-term disability are complex.

Ordinarily, in a case in which an employee is absent from work as a result of illness or disability, the employer does not have “just cause” to instantaneously terminate the employment relationship, because a mere absence from work due to illness or disability is not a contractual breach.

Since the medical prognosis for many illnesses and disabilities can be very uncertain, when an employee is absent from work, this uncertainty can create difficulties within the workplace.

As a consequence, there are indeed some instances in which you can legally be terminated whilst on disability leave, but only as long as your employer follows the rules. The question is often asked: “When is an employer justified in terminating employment where an employee is absent from work due to a temporary, but prolonged, illness or disability?”

In fact, this question often arises in matters relating to employees who have been away from work and are receiving long-term disability benefits for protracted periods.

Generally, the fundamental issue for terminating an employee who is on long term disability is whether or not that worker has a reasonable prospect of recovering and returning to work in the foreseeable future.

Frustration of contract

Surely, at the beginning of a contract, it is assumed the employee will be fit and able to report to work. However, where an illness or disability prevents the employee from reporting to work, the contract may be “frustrated”. This means the circumstances, which are not the fault of either party, make it impossible to continue with the employment contract, and therefore the employee is excused from reporting to work, and the employer is excused from continuing to employ the employee.

The employer though will have to establish that the worker is incapable of performing the basic duties associated with his or her post, with or without modifications to accommodate restrictions; is incapable of undertaking any other productive work, and, as noted earlier, has no reasonable prospect of returning to work.

This though is subject to applicable statutory entitlements relating to termination pay and severance, and is also predicated on the type of coverage the employee, has as well as whether or not that employee is unionized.

This is because, within the unionized context, an employer’s right to terminate a disabled employee while on long-term disability will depend on whether the dismissal deprives the worker of continued access to negotiated benefits specifically tied to the illness or disability.

One crucial consideration as it relates to termination is the period of past employment. An employment relationship that is of long-standing is not so easily frustrated. For example, an employee who has been working for an establishment for 30 years and becomes afflicted with an illness, absence for two years would not be considered being away long enough to frustrate the employment contract.

That said, the termination of an employee on long-term disability requires careful deliberation and so, an employer ought to first evaluate an employee’s prospect for recovery and return to work, as well as provisions for accommodating him or her.

When to contact a long-term disability lawyer

If your employment was terminated without cause while you were on long-term disability, you should contact a long-term disability lawyer.

If you are searching for a long-term disability lawyer in Vancouver, contact us at Tim Louis and Company. Our Vancouver long-term disability lawyer has over 25 years of experience and would be pleased to assist with your case.

Call us today to schedule a consultation.

How to Prove Constructive Dismissal in a Case

In employment law, constructive dismissal takes place when an employee resigns due to unwanted changes to fundamental terms of their employment contract, or due to the employer creating a hostile work environment.

Despite no actual firing taking place, the conduct of the employer would have to be of such a scale and scope that the employee is at liberty to regard himself or herself as having been dismissed. In other words, since the resignation was not truly voluntary, effectively, it is considered a dismissal.

Constructive dismissal is, however, often harder to prove than many employees tend to think. The responsibility of proving constructive dismissal rests solely on the employee, who must first provide the requisite evidence to prove that a fundamental breach of contract was committed by the employer, whilst the employer’s only requirement would be to prove that the resignation was not forced.

What qualifies as constructive dismissal?

Among the circumstances which may constitute a breach of contract and enable an employee to leave and claim constructive dismissal are:

  • Unfair and unfounded allegations of poor performance
  • Unexpected reductions in wages/salaries, or not being paid when expected, without reasonable explanation or notice
  • A sudden demotion without reason
  • Unreasonable disciplinary procedures
  • Forcing staff to work in breach of health and safety laws
  • A complete change in tasks/duties without adequate notice or training

Once the employer breaches a fundamental term, under the law, he or she is in breach of the whole contract. The employee is entitled, therefore, to accept the repudiation, thus bringing the contract to an end and thereafter sue the employer for damages.

In order to change a contractual term, both employer and employee have to agree to the new terms, as new terms imposed without agreement and consideration may be unenforceable and may also destroy the entire contract.

There are two types of constructive dismissal. In the first, it must be determined that the employer has implicitly or explicitly breached a term of the employment agreement. Thereafter, it must be determined whether or not the breach was of a magnitude that substantially altered the employment relationship.

The second type of constructive dismissal occurs if the employer’s conduct has shown that he or she intends to no longer be bound by the employment agreement. In this case, there may be a series of smaller breaches of the employment contract by the employer or no actual breach. However, the court may examine the employer’s cumulative treatment of the employee to determine if it demonstrates an intention to no longer be bound by the contract.

In proving constructive dismissal, not only is time is of the essence, but the conduct of the employee after the unfair act takes place is also critical. Due to the fact that when an employer imposes new fundamental terms to which the employee does not agree, the employee can be considered constructively dismissed, the employee must withdraw quickly as continuing to work under the new terms may indicate the employee’s acceptance or condone of the change.

At that point, the law will prevent the employee from making any claim for constructive dismissal.

Do you need help proving constructive dismissal in Vancouver?

If you believe you were the victim of constructive dismissal and are searching for an employment lawyer in Vancouver, contact us at Tim Louis and Company.

Our Vancouver employment lawyer would be pleased to assist with your case on a contingency basis. Call us today to schedule a consultation.

Earning Tips and Fired From Your Job? The Law Is On Your Side

no-money-law

If you have recently been fired or terminated from your job and your boss had no valid reason for doing so, that could fall under a wrongful dismissal, where you probably already know that your employer must pay you damages. This payment is in lieu of your employer giving you reasonable notice in cases of firing without just cause. As a general rule of thumb, the amount is equivalent to the salary or wages you would have received with termination with reasonable notice — anywhere between four weeks at the low end and six weeks at the high end for each year of employment.

Employers Are Liable For Tips and Gratuities

Where this can get complicated is if you were earning tips or gratuities in addition to your salary or wage while working somewhere like a bar or restaurant. If you’re like most people in such a line of work, you probably don’t declare all or most of your tips on your income tax return. The question is, in such a situation, is your employee liable to you not only for your base wages, but also for the tips you would have earned during the notice period? And, if your employer is liable for these tips, who calculates that amount — your employer or you?

The B.C. Supreme Court considered these questions, and the judgment is great news for people who earn part of their income from tips.

Sarah Chapple, a restaurant manager, took her employer, Umberto Management Inc., to court. In January 2007, she was dismissed after having worked for the defendant for more than 13 years.

The Umberto Management Inc. Case

The trial judge ruled that Umberto Management should have given Ms. Chapple 15 months’ notice, and therefore she was entitled to 15 months’ pay. As well, the trial judge went on to award her more than $70,000 for the tips she would have earned during the notice period, despite the fact she did not claim all of her gratuities on her income tax, nor did she or the defendant keep records of her tips.

restaurant-bar-law

The defendant appealed the trial judge’s decision. Firstly, Umberto Management alleged that they did have good reason to terminate her in the first place. Therefore, no notice was required. In the alternative, they argued that not only was 15 months’ notice excessive but the award of over $70,000 for tips was excessive, too.

The B.C. Court of Appeal rejected the defendant’s appeal on all grounds.

What does all this mean? If you have been recently terminated without cause by your employer and you earned tips or gratuities, the law is now firmly on your side.

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