If you entered an agreement to be employed by an employer, whether written or verbal, and if the employer refused to employ you before you even start, you may still be entitled to compensation. This article introduces some legal bases for such a potential claim in B.C.
Lack of Reasonable Notice in BC
Courts have confirmed that an employee who is terminated without cause is entitled to reasonable notice or damages in lieu of such notice, even if the termination occurs before the employee has started work: DeGagne v City of Williams Lake, 2015 BCSC 816 (“DeGagne”).
In Buchanan v Introjunction Ltd., 2017 BCSC 1002 (“Buchanan”), an employer retracted its offer of employment previously issued to the party that sued. Even though there was a probation clause, the court found that the employer could not rely on it because:
- The employer terminated the agreement before the probation period began, which was the first day the employee was supposed to work.
- The probation clause’s purpose is to permit the employer to engage in a good faith assessment of the employee’s suitability for the position.
- The employer’s retraction of the agreement constituted repudiation, one that was accepted by the employee. In other words, the employer expressed its intention not to be bound by the agreement, allowing the employee to accept it and treat the agreement as ended. As the agreement ended, the employer cannot rely on the probation clause in the agreement.
Ultimately, the court in Buchanan found that the employee was wrongfully terminated and awarded the employee $14,424 in compensation.
Similarly, in DeGagne, the court found that the employer could not rely on the probation clause when it terminated the agreement to employ the employee and that the employer was required to give six months’ notice to terminate. As such, even though the employee never began work, the employee was awarded $65,250, loss of his pension and other benefits for six months, and relocation costs of $643.
Subject to few exceptions, a person must not refuse to employ or refuse to continue to employ a person because of the Indigenous identity, race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex, sexual orientation, gender identity or expression, or age of that person or because that person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person: Human Rights Code [RSBC 1996] c. 210 s. 13(1).
If an employer decided to refuse employment to someone because of one of the prohibited grounds of discrimination, then the employee may be entitled to compensation. Examples of evidence that can support such a claim include discussions during the interview where the employer advised that the prospective employee may not do well in the role as she is a female and discussions after having offered employment about the employee being too heavy.
In Rogal v Dalgliesh, 2000 BCHRT 22 (“Rogal”), the B.C. Human Rights Tribunal found that the complainant was discriminated against because of a perceived disability. In Rogal, the complainant moved from Saskatchewan to Vancouver to work with the respondent company, understanding that the job was his. The day after meeting in person, the respondent company’s representative told the complainant that he was “too big and too heavy” for the lifestyle and that there were no uniforms big enough to fit him. This constituted discrimination that was not justified by a bona fide occupational requirement and that could have been prevented by accommodation. The complainant was awarded $7,740.31 as compensation for lost wages and expenses incurred and $3,500 more as compensation for damage to his feelings and self-respect.
It is important to recognize when the employer is refusing to employ you after entering an employment agreement and, as limitation periods limit the time you have the right to seek a remedy, it is important to seek legal representation immediately when you suspect refusal. You may be entitled to weeks or even months’ of pay and possibly compensation for discrimination.
Many of our lawyers can assist you in handling such situations or other situations where you have been terminated. Please feel free to book an initial consultation with us to discuss your case. We warmly welcome the opportunity to assist you.
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Kasia was born and raised in Vancouver, British Columbia, where she completed her Bachelor’s degree at the University of British Columbia. She went on to obtain her Juris Doctorate with Honours from Bond University in Australia.