Wrongful Dismissal

Severance Pay and Wrongful Dismissal Laws in Canada
Severvance Pay Wrongful Dismissal Wrongful Termination

Severance and Security

Severance Pay and Wrongful Dismissal Laws in Canada

Severance and Security: Navigating Severance Pay and Wrongful Dismissal Laws in Canada

By Tim Louis

In the complex world of Canadian employment law, understanding your rights and responsibilities as either an employee or employer is not just beneficial—it’s essential.

This legal landscape, comprising both federal and provincial regulations, shapes every workplace. From the bustling business hubs of Toronto and Vancouver to the energy-driven markets of Alberta, these laws ensure fair play, safeguard interests, and foster a balanced working environment.
Whether you’re navigating the complexities of severance pay or facing the challenges of a wrongful dismissal, a firm understanding of these laws not only secures your professional standing but also your financial security.

Understanding Severance Pay in Canada

Severance pay serves as a cushion for employees during the transitional period after job loss, intended to bridge the gap until they find new employment. In Canada, severance is dictated by a combination of federal and provincial laws, each tailored to local economic landscapes and labor markets.
Under federal regulation, severance pay is required when an employee has been with a company for at least 12 months and is laid off without cause. However, provincial regulations can vary—Ontario, for instance, has its severance pay calculations based on the length of employment and the employer’s payroll. British Columbia’s Employment Standards Act provides guidance on compensation for length of service, and Alberta’s Employment Standards Code stipulates severance based on notice periods and weeks of pay.

This varied landscape underscores the importance of seeking knowledgeable legal advice from an employment lawyer like Tim Louis, when dealing with severance pay issues, ensuring that you receive fair and just compensation aligned with Canadian employment law.

Wrongful Dismissal in Canada: What You Need to Know

Wrongful dismissal in Canada is a termination without just cause or adequate notice.
Legally, employers are obliged to either provide appropriate notice or compensation in lieu of notice when dismissing an employee without cause. The grounds for claiming wrongful dismissal arise when these obligations are not met.

To seek compensation, the wronged party must typically initiate a legal claim or complaint through the appropriate provincial employment standards tribunal or through the courts. The potential outcomes of such actions can range from monetary compensation for lost wages and benefits to, less commonly, reinstatement to the former position if deemed appropriate by the tribunal or court.

It is crucial for employees to understand these rights and for employers to adhere to these legal frameworks to maintain fair and lawful workplace practices.

 

Employee Rights in Ontario

In Ontario, employees have rights that protect their workplace well-being and ensure fair treatment under the Employment Standards Act. These rights include entitlements to minimum wage, overtime pay, and various leaves of absence, such as parental and emergency leave. The Ministry of Labour, through its enforcement arm, safeguards these rights with rigorous inspection and complaint resolution processes.
Common workplace issues often revolve around disputes concerning wrongful dismissal, hours of work, or unpaid wages. Addressing these matters effectively requires a thorough understanding of legal rights and, frequently, the involvement of skilled legal counsel to advocate for rightful resolutions.

 

 

Employment Law in British Columbia: A Closer Look

British Columbia’s employment law landscape has undergone significant changes, aimed at enhancing protections for workers while ensuring that employers understand their obligations. A key area of reform is the increased enforcement powers of the Director of Employment Standards, who can now initiate investigations into compliance "at any time or for any reason." This represents a proactive approach to ensuring that the Employment Standards Act and its regulations are followed diligently.

Recent amendments have also modified the complaint process, allowing for greater flexibility. Employees can request to file a complaint even after the six-month deadline from their last day of work if they can demonstrate special circumstances that prevented them from doing so earlier. This change recognizes the complexities that can delay action and provides a potential avenue for recourse beyond the standard timeframe.

In addition to procedural changes, British Columbia has updated its standards to better protect young workers. The general working age has been raised from 12 to 16, aligning with international standards for children’s employment. This change, which took effect on October 15, 2021, is accompanied by clear definitions of what constitutes appropriate work for young workers, ensuring their safety and well-being in the workplace.

The province’s commitment to worker protection is further exemplified by its stance on human rights, with the BC Human Rights Code prohibiting discrimination in employment practices, from hiring to pay and termination. Employers are also mandated to take reasonable steps to prevent workplace bullying and harassment, and to adhere to safety standards established by WorkSafeBC.

For unionized employees, the B.C. Labour Relations Code provides specific guidelines for wages and working conditions, distinct from the Employment Standards Act. These legislative frameworks collectively contribute to a robust system safeguarding the rights of workers in British Columbia.
These changes reflect a progressive attitude towards employment law, prioritizing fair treatment and the health and safety of employees while providing clarity and support for employers to maintain compliance​​​​​​.

 

Calculating Severance in Canada

Navigating the complexities of severance pay across Canadian provinces can be daunting for both employers and employees.

Each province has its own set of rules and regulations that dictate how much severance pay an individual is entitled to upon termination of employment. To provide clarity, here is a comparative table of the statutory severance pay requirements for British Columbia, Alberta, and Ontario.

Province

Length of Service

Severance Pay

British Columbia

3 months – 1 year

1 week

1 year – 3 years

2 weeks

3+ years

1 additional week per year, up to 8 weeks

Alberta

90 days – 2 years

1 week

2 years – 4 years

2 weeks

4 years – 6 years

4 weeks

6 years – 8 years

5 weeks

8 years – 10 years

6 weeks

10+ years

8 weeks

Ontario

1 year

1 week

3 years

2 weeks

Each additional year

1 additional week, up to a maximum of 8 weeks

Please note that this table is based on statutory minimums. The calculation of severance pay can be more complicated and may also include common law entitlements, which can be significantly higher than the statutory requirements. This table does not account for other factors that might affect severance pay, such as the age of the employee, the nature of their position, or whether they were terminated with cause.

These are the minimum standards, and many employees are often entitled to more under common law, which can consider factors such as age, length of service, position, salary, and the availability of similar employment. For accurate and legal severance pay calculations, it’s best to consult an employment lawyer.
To illustrate, let’s say an employee in Alberta with 7 years of service earning a fixed annual salary of $52,000 would be entitled to 5 weeks’ notice or pay in lieu, equating to approximately $5,000 before deductions, as per the ESC minimums. However, for variable pay structures, the average earnings of the last 13 weeks prior to termination are used to calculate the severance.

For common law severance, which could be significantly more than the ESC, the severance pay could be up to 24 months of the employee’s salary.

If your employment contract includes a termination clause, it is crucial to have it reviewed by a legal expert since many such clauses may not be enforceable, thus potentially entitling you to common law severance, which is often more generous than the statutory minimum.
For personalized assistance and detailed severance calculation, it is advisable to consult with employment lawyers with experience like Tim Louis, who can provide guidance specific to your circumstances and ensure that you receive the full amount you are legally entitled to​​​​​​​​.

When faced with termination or the task of calculating severance, having expert legal advice can make a significant difference in the outcome. Lawyers can help you navigate these calculations and negotiate severance packages that accurately reflect your entitlements.

 

Legal Redress for Employees in Canada

In Canada, employees seeking legal redress have a spectrum of options to protect their rights and address grievances. It’s vital for employees to know that legal recourse is not confined to courtrooms. Many disputes are efficiently resolved through mediation or arbitration. These methods offer a less formal, often quicker, and potentially more collaborative approach to resolving workplace disputes compared to traditional litigation.

When the need for legal representation arises, choosing the right advocate is crucial. Look for a lawyer who not only specializes in employment law but also one who aligns with your communication style and understands your specific needs. A good advocate should be able to explain complex legal jargon and be committed to your best interests.

 

Deciphering Employment Contracts

Understanding your employment contract is critical before signing on the dotted line. A valid contract should clearly outline the job description, salary or wage, work hours, benefits, confidentiality clauses, termination conditions, and dispute resolution mechanisms. When reviewing your contract, pay close attention to the terms and ensure you fully understand them. It’s wise to seek legal advice for a thorough review, especially for clauses that seem overly complex or vague.

Negotiating your contract is not just a prerogative; it’s a step towards ensuring fair employment terms. Don’t shy away from discussing and requesting changes to parts of the contract that you are not comfortable with. Be cautious of red flags such as broad non-compete clauses that may restrict future employment opportunities, clauses that allow for unilateral changes to the contract by the employer, or any stipulations that contravene employment standards legislation. These could suggest future disputes and may necessitate a more careful legal review By being informed about your rights, understanding the legal documents you sign, and knowing methods of dispute resolution, you can safeguard your professional interests and maintain a healthy work-life balance.

 

Where to Get Workplace Legal Advice in Canada

Navigating the realm of employment law can be daunting, but in Canada, a wealth of resources is available for those seeking workplace legal advice. Government agencies, such as the provincial Ministries of Labour, offer guidelines and support for employment standards and rights. Non-profit organizations and legal clinics often provide free or low-cost advice and may offer services like workshops or one-on-one consultations, specifically geared towards workers’ rights and employer obligations.

Knowing when to seek professional legal advice is key. Scenarios such as a dispute over termination, concerns about workplace safety, discrimination issues, or any complex contract negotiations require the expertise of an employment lawyer. These professionals are equipped to offer advice that is based on your particular situation.
When preparing for a legal consultation, gather all relevant documents—contracts, correspondence, pay stubs—and write down a clear timeline of events and any questions you have. Being prepared will help you make the most of the consultation and ensure that the legal advisor can provide comprehensive guidance.

 

An Overview of Canadian Labor Laws

Canadian labor laws have evolved over decades, influenced by the changing tides of the workforce, economy, and societal values. The labor movement’s history is rich with struggles and victories that have shaped the current legal framework, protecting worker rights and setting employment standards.
Federal labor laws govern employees of the federal government and industries under federal jurisdiction, such as banking, broadcasting, and inter-provincial transportation. Provincial labor laws apply to most other employment relationships and can differ significantly from one province to another.

These laws impact the Canadian workforce by setting minimum standards for working conditions, wages, hours of work, and health and safety standards. They also provide mechanisms for collective bargaining and ensure rights to fair treatment. The impact is profound, as these laws create a baseline for employment conditions and play a critical role in disputes resolution.

 

Severance Pay Calculations: Regional Perspectives

When comparing severance pay calculations across Ontario, British Columbia, and Alberta, notable regional differences emerge based on the respective employment standards and common law precedents.

In Ontario, for instance, the Employment Standards Act provides minimum standards, but common law entitlements can be substantially higher, often influenced by the length of service, age, position, and availability of similar employment.
British Columbia has similar statutory minimums, with recent changes emphasizing proactive compliance checks and protections for young workers.

Alberta’s approach under the Employment Standards Code sets out clear notice periods based on service length but also allows for common law considerations that may significantly increase an employee’s severance pay.
Employees and employers seeking to navigate severance pay calculations can utilize various tools and resources. Online severance pay calculators, government websites, and legal blogs provide preliminary guidance. However, these tools should be used as a starting point, with professional legal advice tailoring the final severance package to the individual’s circumstances.

 

At the Crossroads of Employment?

Understanding employment laws in Canada is crucial for securing your rights. If you’re facing severance or wrongful dismissal issues, or need contract advice, expert legal advice is key.
Contact Tim Louis, an experienced employment lawyer with 40 years of experience, to ensure your employment rights are protected. For personalized legal counsel, reach out to Tim Louis at (604) 732-7678 or email timlouis@timlouislaw.com. Don’t navigate this complex landscape alone; secure your professional future today.

Frequently Asked Questions

Termination pay and severance pay are different in Canada. Termination pay refers to the minimum pay given to an employee when they lose their job, are fired, or laid off immediately. Severance pay, on the other hand, is intended to compensate the employee for more than just the loss of employment and to support them during their unemployment period.
Wrongful dismissal in Canada occurs when an employer terminates an employee without providing adequate notice or a proper severance package. It can also happen if an employer incorrectly fires an employee for cause (alleged serious misconduct) without severance pay, or if the employer triggers a constructive dismissal by significantly altering the employee’s job responsibilities, pay, or work environment.
If you suspect you’ve been wrongfully dismissed, the first step is to review your employment contract to understand the terms regarding termination and notice periods. It’s advisable to document everything related to your dismissal, including emails, texts, and conversations. Seeking legal advice is crucial, as a lawyer can clarify confusing aspects of your dismissal and help understand the strength of your claim. If advised, you may need to file a claim or lawsuit, and negotiations for a settlement could follow.
Compensation for wrongful dismissal can include termination pay and notice, which depends on factors like age, level of seniority, years of service, and employability. Severance pay might also be applicable, particularly for long-term employees in large companies. In cases where the dismissal was harsh, misleading, or malicious, additional damages for mental distress or punitive damages may be awarded.
Severance pay in Canada is a form of monetary compensation provided to employees who are laid off or terminated without a valid legal reason. It’s typically paid to long-term employees as recognition for their services and to compensate for losses like seniority. The exact definition and conditions can vary depending on the province or territory.
The amount of severance pay in Canada varies greatly and depends on several factors, including the length of service, the employee’s age, and the nature of their position. There’s no standard amount, but in general, older, long-standing employees are often entitled to a minimum of twenty-four months’ severance. In certain cases, employees could be entitled to more than 12 months of severance after just one year of service.
Yes, employers have the right to pay severance over time or as a lump sum. While the payment method is usually at the employer’s discretion, in many cases, an employee’s lawyer can negotiate a favorable method of payment, such as tax-friendly solutions. However, a payment plan cannot extend beyond three years, and termination pay must be paid in full within 7 days or on the next normal pay day.
Employees are generally eligible for severance pay under the Employment Standards Act if they have at least five years of service with the employer and the employer either has a payroll of at least $2.5 million or has terminated 50 or more employees within a six-month period. However, this can vary between provinces and territories, and there are specific conditions and exemptions in each region.
Time is crucial in wrongful dismissal cases. Generally, there is a two-year limitation period for bringing a wrongful dismissal lawsuit in Canada. Delaying action can diminish the prospects of collecting damages and, in some cases, may even prohibit legal action due to statutory time limits​.

Links to Relevant Resources and Further Reading:

For further reading and resources, visit:

  • The Canadian government’s official page on termination, layoff, or dismissal provides a comprehensive overview of the regulations under the Canada Labour Code. Employers must follow specific requirements when terminating individual or group employment, including providing notice or pay in lieu of notice, and severance pay after 12 months of continuous employment. Notably, from February 1, 2024, the rules will change to require longer notice periods based on years of service and a detailed statement of benefits upon termination. The page also outlines the rights and processes for employees facing unjust dismissal, emphasizing the employer’s burden to prove the validity of the dismissal reasons.

    For a detailed understanding of these regulations and processes, please visit the official Government of Canada termination, layoff, or dismissal page.

Legal Services in BC - Tim Louis
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BC Lawyer Tim Louis

Tim Louis Award for Pro Bono Service

BC Lawyer Tim Louis

Many people ask me why I became a lawyer. It all begins in the late 1970s. I was a student and a concerned about the lack of transportation for folks like me that could not access the public transit system. In those days, buses were not accessible – they did not have fold down ramps. I began lobbying Vancouver City Council to create what we now call HandyDART.

One city councilor, Harry Rankin, stood head and shoulders above all the others. His ability to stand up for the “underdog” was something to be seen. He was also a lawyer, and planted the seed in my mind – could I become a lawyer who committed himself to doing what Harry did?

A few years later – 1980, Harry wrote the letter that got me admitted to UBC’s School of Law. In 1983, Harry hired me as his articling law student. In 1999, I was elected to Vancouver City Council as a member of the party he founded – COPE.

I love being a lawyer. Fighting for justice inspires me. Winning cases that at first blush seem unwinnable gives me life. The last 38 years have been absolutely incredible and I hope to write a book soon about a number of my most exciting cases. Harry wrote a book – Rankin’s Law.

If you are ever interested in learning a bit more about the man responsible for who I am today, take a look at “The Rankin File: Legacy of a Radical”.

Disability Lawyer Vancouver BC

Many employers will provide Long Term Disability coverage for their employees. If an employee with LTD coverage becomes unable to work, they are entitled to LTD benefits. Typically, an insurance company collects the premiums every month that the employee is working and then pays the employee when they become disabled. In some cases, the employer will self-insure.

A self-insured employer collects the premiums and makes all LTD payments. One more important thing to be aware of – if the employee pays the premiums every month, any future disability benefits will be tax-free. If on the other hand, the employer pays the premiums every month, then any future disability benefits will be taxable.

I act for individuals denied their long term disability benefits no matter what the cause of their disability. If you are unable to work, and you have been denied long term disability benefits, I will act for you no matter what the cause of your disability.

Since 1984, I have acted for individuals unable to work as a result of many different causes. People with chronic fatigue syndrome, fibromyalgia and mental illness are just a few of the wide array of cases I take on.

Why hire a disability lawyer?

I am frequently asked – why hire a disability lawyer? The answer is very clear. Without a lawyer, you are at a significant disadvantage when dealing with your insurance company. There is a power imbalance between you and the insurance company’s representative.

Your insurance company will send you to a medical expert of their choosing. Typically this medical expert will be biased against you. When you hire a lawyer, everything changes. All communication must go through your lawyer. Your lawyer will refer you to one or more medical experts so that if your case goes to court, the judge will have medical expert reports from both sides.

What to do if you have been denied benefits

If you have been denied long term disability benefits, or if your long term disability benefits have been terminated, you should see a lawyer immediately. Some individuals are fooled by their insurance company’s invitation to appeal the denial or termination.

These appeals are all dealt with by the insurance company’s own staff. Almost all appeals are unsuccessful. The longer the appeal process takes, the longer it takes to start a lawsuit. The longer it takes to start a lawsuit, the longer it takes to get a trial date. Even worse, if you allow the appeal process to drag on for more than 2 years without starting your lawsuit, your case is finished. You are not allowed to sue more than 2 years after a denial or termination.

Why hire Tim Louis if your insurance claims have been denied?

I have almost 40 years of experience fighting insurance companies on behalf of disabled individuals. Insurance companies do not like me. I recognize that many people are fearful of going to trial, so I always aim to get my client what they would likely receive at trial in an out of court settlement instead. One of the best ways to decide whether or not a lawyer is the right lawyer for you, is to look at their online reviews. I am very proud of the over 100 online reviews I have received that have given me a 4.9 star rating. I only get paid if we are successful.

Personal Injury Claim

Personal Injury Lawyer Vancouver BC

If you have been injured as a result of someone else’s or a corporation’s fault, you are entitled to compensation for not just your pain and suffering, but also your lost income, including income you will lose in the future. You must start your lawsuit within 2 years of suffering your injury. If you fail to do so, your lawsuit is out of time. Many people are unaware of the fact that if they wish to sue a municipality, say for a trip and fall on a municipal sidewalk, there is a special requirement that they must serve the city clerk with written notice setting out the general details of what happened, including where and when. This written notice must be served on the city clerk within 60 days of the injury.

I have acted for individuals suffering from all types of personal injuries including slip and fall, dog bite(s) and burns. Many of my slip and fall cases occur inside retail establishments where my client slips on water or produce. I have acted for clients who have suffered very serious dog bites. Injury from burns may occur in a restaurant where boiling water or other liquid(s) is accidentally poured on my client. I have acted for individuals who were burned by the hot water coming out of their residential tap as a result of the landlord setting the hot water tank at too high a temperature.

When to hire a personal injury lawyer?

If you have suffered a personal injury, you should hire a lawyer, specifically one with a proven track record. In most cases, the party responsible for your injury will have insurance. The insurance company will assign an adjustor to your case, whose specialty is reducing the amount of money you receive. A lawyer will level the playing field.

What to do if you have been injured?

If you have been injured, and the party at fault has insurance, you should not talk to anyone from the insurance company. Instead, you should hire a lawyer with a proven track record. You should keep track of all of your out of pocket expenses, including medical expenses. If, due to injury, you are unable to apply for a job you had been planning on applying for, you should keep a record of the name of the potential employer and what the pay would have been. You should see your family doctor on a regular basis, so that there is a record of your symptoms in your medical file.

Why hire Tim Louis?

As my over 140 online reviews confirm, I get results, while at the same time providing accessible client-centered legal representation. I have been acting for injured individuals for almost 40 years. I am known for moving my client’s file along without unnecessary delays. As many clients are reluctant to go all the way to trial, my goal, whenever possible, is to get my client an out of court settlement equal to what they would have achieved at trial.

Wrongful Termination or dismissal

Employment law in BC – Tim Louis

Most employees are governed by provincial legislation. However, employees working in industries that are federally regulated such as airlines and banks, are governed by federal legislation. If you have been terminated without adequate notice by your employer, then you are entitled to compensation unless your employer had just cause for the termination. Theft, chronic tardiness, and insubordination are a few examples that would give an employer just cause to terminate without notice.

If your employer terminates you alleging they have just cause, that does not necessarily mean that they do. I have acted for many clients whose employer terminated them alleging just cause, but I was able to demonstrate that the ‘just cause’ did not actually exist. If you sue your employer for termination without cause, then you may be entitled to pay in lieu of notice in the range of 4-5 months of pay per year of employment.

When to hire an employment lawyer?

If you have questions about any of the above areas, then you are better off hiring an employment lawyer who will provide you with the legal advice you need to make informed decisions. Most employers know much more about employment law than their employees. When the employee hires a lawyer, the employee is no longer at a disadvantage.

Why work with employment lawyer Tim Louis?

I have almost 40 years of experience representing employees. I never act for the employer. I have a proven track record of winning victories for my clients. Clients that want to hire me on a percentage basis know that they will only pay me if I win for them.

BC Lawyer TIm Louis

Estate Litigation Law in BC

The Wills, Estates and Succession Act (WESA) came into force in 2009 replacing the Wills Variation Act. WESA gives any child, including an adult child, and the spouse of a deceased person the right to apply to court to vary the will of the deceased person. The court will look at many factors, including the size of the estate and the financial situation of the applicant.

I have acted for minor children, adult children, and the spouse of a deceased person who left a will that did not make adequate provision for my client. I have also acted for individuals named in an earlier will, but not named in the deceased’s last will where the deceased person did not have the mental capacity to make the last will.

When to hire an estate litigation lawyer

If your parent or spouse has passed away and you feel that they do not make adequate provision for you in their will, you should see a lawyer immediately. You may have a very strong case on an application to court to have the deceased’s will varied. You should also see a lawyer immediately if you were named in an earlier will but the deceased did not put you in the current will, and you feel the deceased lacked the mental capacity to make the last will.

Why work with Tim Louis?

I have almost 40 years of experience helping the disinherited contest wills and transfers – and win. As my countless online reviews will attest, I provide the very best client-focused service.

Tim Louis Law Testimonials and Google Reviews

Vancouver Lawyer Tim Louis

When to contact a lawyer?

If you have a legal concern, it almost always pays to consult a lawyer. Most lawyers will provide the initial consultation for free, or for a very low fee. This is well worth the investment as you may fail to exercise your rights without getting legal advice.

The benefits of working with a trial lawyer

Managing a lawsuit all the way up to, and if necessary trial, is a complex matter. The rules of court are complex. A trial lawyer knows how to properly prepare your case. This actually reduces the likelihood of the matter going to trial, as the other side sees how well prepared you are. If it does go to trial, your case will be properly presented to the judge.

First steps? Free consultation

Your first step is to find a lawyer experienced in your area of law. You might try talking to friends or acquaintances. Many people looking for a good lawyer will choose instead to do an online search, which will give a much wider list of potential lawyers. It will also provide an opportunity to read about the lawyer on their website. Finally, it will provide an opportunity to read online reviews.

Many lawyers will offer free consultations. Some individuals looking to hire a lawyer will choose to interview two or three lawyers before choosing the one they are most comfortable with.

Contact Tim Louis

If you are looking for the advice of an experienced lawyer, call me. I have been practicing law for almost 40 years, and I have the results to show why I’ve been in the business for so long.

My law firm phone number is 604-732-7678.

My cell is 778-855-3494.

Employee rights when terminated
Termination without cause Wrongful Dismissal Wrongful Termination

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
Employment Law Employment Lawyer Wrongful Dismissal Wrongful Termination

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

Wrongful Termination
Employment Law Employment Lawyer Wrongful Dismissal Wrongful Termination

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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Wrongful Dismissal
Employment Wrongful Dismissal

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 | Tim Louis and Company
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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
Long-Term Disability Law Wrongful Dismissal

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.

Constructive Dismissal in The Workplace | Tim Louis & Company Law
Employment Wrongful Dismissal

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.

Employment Tips Wrongful Dismissal

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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Specializing in Personal Injury, Long-Term Disability, Employment Law, and Estate Litigation.

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