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

Client Reviews

Terminated Without Cause?

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.

Client Reviews

Termination Without Cause While on Long-Term Disability

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

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.

Long-Term Disability

Employment Law

Wills/Estate Litigation

Personal Injury

Wrongful Dismissal

What is Wrongful Dismissal?

What is Wrongful Dismissal?

What is Wrongful Dismissal?

What is ‘Just Cause?’

Proving Wrongful Dismissal

Do Not Sign a Severance Offer

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

Contact A Trusted Employment Lawyer

Client Reviews

Terminated Without Cause?

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

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

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

When is a payment not required when terminated without cause?

Filing a wrongful dismissal claim in Vancouver

Client Reviews

Termination Without Cause While on Long-Term Disability

Termination Without Cause – while on long-term disability

Frustration of contract

When to contact a long-term disability lawyer

How to Prove Constructive Dismissal in a Case

What qualifies as constructive dismissal?

Do you need help proving constructive dismissal in Vancouver?

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

Employers Are Liable For Tips and Gratuities

The Umberto Management Inc. Case

Contact Tim Louis & Company Law Firm

About Tim Louis & Company Law Firm

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