In British Columbia, the Employment Standards Act (ESA) regulates employment relations for provincially regulated workplaces. The ESA set out the applicable rules regarding notice periods, payments in lieu of notice, compensation, and working conditions for British Columbia regulated businesses. The ESA also provides rules that regulate the termination of employment contracts. The ESA excludes certain individuals such as independent contractors, union members, federally regulated employees, and people in certain licensed professions.
What is wrongful dismissal?
A wrongful dismissal occurs when an employer terminates or dismisses an employee without providing the employee with advance notice or reasonable notice of the termination of employment. In most cases and particularly with employment relationships where there is a formal written employment contract, the notice of termination will likely be set out in the employment contract by either an express reference to the ESA or a termination clause with a custom notice period.
How can wrongful dismissal arise?
Wrongful dismissal can arise in three separate circumstances: termination without cause, termination for cause, and constructive dismissal.
The general rule is that an employer may terminate the employment of an employee without cause or for any reason, provided the employee is given the proper notice and severance, where applicable.
It is also the case that an employer may terminate an employee's employment for cause and without any severance pay where an employee’s conduct amounts to misconduct the severity of which warrants a termination for cause. Termination for cause may be warranted where allegations of theft, fraud, sexual harassment, and insubordination are involved and any of these misconducts would warrant termination for cause. An employer must, however, ensure that he has documented records of the employee’s behaviour in the employee’s file. For employers, documented steps of progressive corrective actions are recommended and prove useful in the event of a dismissal for cause.
An employer may also, in certain circumstances be deemed by a court to have constructively dismissed an employee where the employer changes a material aspect or condition which is central to an employee’s job or where an employer conducts itself in such a way as to make the job fundamentally different for the employee.
When does reasonable notice apply?
The courts in recognising the power dynamic between employers and employees often intervene when unfairness is apparent in the dismissal of an employee. Under the common law, an employer is required to provide an employee “reasonable notice”. The following are some basic guidelines that apply to employees under the Employment Standards Act in British Columbia:
After serving three months or less, you are not entitled to notice or pay.
After serving more than three months, you are entitled to one week's notice and/or one week’s pay in lieu of notice as severance.
After serving more than one year of employment, you are entitled to two week’s notice and/or two weeks’ pay in lieu of notice as severance.
After serving more than three years of employment, you are entitled to three week’s notice and/or three weeks’ pay in lieu of notice, plus one week of notice or pay after each additional years of employment (to a maximum of eight weeks)
In the absence of a written contract, or where the termination clause is deemed by a court to be unenforceable, the court will imply a reasonable notice. As an employee in British Columbia, you cannot be dismissed or terminated while you are on a job protected leave, have been laid off, or are on vacation. It is also illegal for an employer in British Columbia to incorporate terms in the contract of employment which are less favourable than what is provided in the ESA.
Conclusion
If you have been terminated whether for just cause or without cause, terminated on a job protected leave like maternity leave or while being laid off, or you feel that your role has been fundamentally changed or dismissed in a way that you can not confidently continue to work at the job, a tell-tale sign of constrictive dismissal, then you need to speak to an employment lawyer as quickly as possible. Also, avoid signing any document from your employer until you have obtained independent legal advice and have it reviewed by your lawyer.
In British Columbia, your cause of action survives for two years, meaning there is a limitation period within which you must institute a wrongful termination or dismissal suit. The limitation for wrongful termination or dismissal is generally two years from the date the right to commence the action arose, otherwise, your right of action, or the right to claim in court afterward, will become lost permanently. You must act fast by speaking to an employment lawyer. At Arcstone Law Corporation, we can assist you in answering all your questions and getting you a better deal with your ex-employer. You can contact us by email admin@arcstonelaw.com or book a consultation on our website. All legal services are rendered through Arcstone, a law corporation.
Contributor:
Name: 'Bolanle Oduntan*
Title: Managing Lawyer
Email: bolanle@arcstonelaw.com
*practicing through Arcstone Law Corporation
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