Many employees wrongly believe that to file a case for wrongful dismissal in Vancouver, or anywhere else in BC, you need to show that the boss discriminated against you or held a personal vendetta and fired you.
Others believe that only full-time employees can sue for wrongful dismissal.
Consequently, many wrongful dismissals go unchecked and employers continue to get away with it.
Within the employment legislation in Vancouver, there are strict guidelines that govern the circumstances under which an employee can be dismissed.
Becoming more familiar with these conditions will help you understand whether you can sue for wrongful dismissal.
WHAT IS WRONGFUL DISMISSAL IN BC?
Wrongful dismissal means being terminated unfairly from your employment.
The term “unfairly” is subjective, and so there are guidelines set out in the BC Employment Standards Act, which we take a closer look at in the next section.
Most wrongful dismissals occur in one of the following two situations:
- An employer terminates an employee without providing adequate advanced notice of the termination.
- An employer dismisses an employee without giving notice because of a mistaken belief that there is “just cause” for termination.
WHAT DO THE EMPLOYMENT LAWS IN BC SAY?
The Employment Standards Act sets out important guidelines concerning the responsibilities of employers and employees in the employment relationship.
This includes the key requirements that employers must meet if they wish to terminate an employee.
According to the Act, unless the employer can show “just cause” for dismissal, the minimum requirements that must be met are as follows:
- For three months of consecutive employment: at least one weeks’ notice or pay must be provided
- For 12 months of consecutive employment: at least two weeks’ notice or pay must be provided
- For three years of consecutive employment: an additional week’s notice or pay for each additional year of service must be provided, up to an eight-week maximum.
These laws apply to full-time and part-time work and even to employment while on probation.
Note that the amounts detailed are minimum requirements by law. Often, a skilled employment lawyer can negotiate a better deal with your employer, especially if you have served the business for a long time and future employment prospects are limited.
It’s always best to speak to an employment lawyer before signing any severance pay agreement.
Note also that the above requirements only apply to employment relationships of three months or more. If you have been employed for less than three months, you may not qualify for any notice or pay and, therefore, may not be able to sue for wrongful termination.
DID YOUR EMPLOYER HAVE “JUST CAUSE” IN BC?
Employers often use “just cause” as a reason for not providing notice or severance pay – without fully understanding or intentionally ignoring the employment laws.
Sometimes, it can be difficult to differentiate between an honest mistake and a willful disregard for the law.
Wrongful terminations often occur when an employer fires someone without warning due to substandard work or because of a refusal to accept a major change in employment terms, such as lower wages or substantially different working hours.
This does not qualify as “just cause”.
“Just cause” is when the terms of the employment contract have been breached by serious misconduct or inappropriate behaviour, such as:
- Theft of company property
- Fraudulent activity
- A demonstrable pattern of lies and dishonesty
- Sexual harassment
- Conflicts of interest
- Serious insubordination
- Persistent absence or lateness from work (with no good reason)
Certain other circumstances may qualify as “just cause”, such as the inability to perform the role due to a permanent medical condition that would cause an employer undue hardship.
However, the bottom line is that your employer cannot simply fire you without a good reason.
You must be given a chance to redress shortcomings in performance and are entitled to written warnings for all but the most serious breaches of employment terms.
However, if your employer has made you aware of performance problems and provided reasonable opportunities to correct them (and warn you in writing), a wrongful dismissal claim may be inadvisable.
WHAT IS CONSIDERED “CONSTRUCTIVE DISMISSAL” IN BC?
In general. constructive dismissal is poorly understood by employers and employees in Vancouver.
This occurs when an employer changes the terms of your employment so fundamentally that it makes your position practically untenable. It’s like you’re being “forced out”.
Fundamental changes may include:
- A reduction in pay without notice (usually at least 5-10 percent)
- An unexplained demotion that entails you performing duties below your level of expertise
- An intolerable workplace environment (sometimes to the point of verbal or physical abuse)
If you find yourself in this situation, it may be possible to resign and sue for wrongful dismissal but make sure that you consult with an employment lawyer before taking this path.
EMPLOYMENT CONTRACTS AND WRONGFUL DISMISSAL
The contents of your employment contract are a major factor in whether you can sue for wrongful dismissal.
As long as the contract abides by the conditions set out in the BC Employment Standards Act, the Vancouver courts will generally be reluctant to intervene.
However, if you were asked to agree to terms that violated the Act and are subsequently dismissed without reasonable notice or just cause, you may have a strong case for wrongful dismissal.
Note that employees in Vancouver who successfully sue for wrongful dismissal may be required to return to work if requested to do so by their ex-employers, or risk losing the damages awarded in their case.
DO YOU HAVE A WRONGFUL DISMISSAL CASE?
You now understand more about the wrongful dismissal laws in BC.
If you feel that you may have a case, contact an employment lawyer within two years of your termination date to avoid losing the right to claim. The earlier the better, in general.
A Taylor Janis employment lawyer can advise you of your options.
Our main hub for British Columbia is located in the heart of Vancouver. We also have a Kamloops Office for interior residents. That said, we serve the entire province of BC. We have the infrastructure to work with any of our clients virtually — even the furthest regions of British Columbia.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
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Evan Harvey is a lawyer practicing labour and employment law in the Vancouver office. He prides himself in a compassionate and focused approach to developing and maintaining trusting client relationships and advocating his clients’ interests in a meticulous, concise, and straight-forward manner.