What is “Wrongful Dismissal”?
A wrongful dismissal occurs when an employer fails to provide an employee with proper notice of termination. What constitutes “proper” notice in any particular case is determined either under a written employment contract or common law. The employment lawyers at Taylor & Blair LLP will be able to advise you as to your legal entitlement to proper notice of termination, and any potential recourse if your employer has not provided you with proper notice of termination.
What does it mean to be fired for “just cause”?
An employer can fire an employee for serious misconduct and allege that there was “just cause” for doing so. If an employee is fired for “just cause” then the employee does no owe them any period of reasonable notice of the end of the employment relationship nor any severance pay.
Examples of what can be considered “just cause” are stealing, criminal activities, willful insubordination, gross incompetence, etc.
If an employer fires you for “just cause” but fails to prove it due to lack of proper documentation/evidence, the employer is obligated to provide adequate notice or severance.
What does it mean to be fired “without cause”?
Just as it sounds, an employer can terminate an employee without a specific reason, and this is called “without cause”. If an employer terminates an employee without cause, they need to either provide a reasonable working notice period, or severance pay in lieu of a reasonable working notice period. If an inadequate period of notice or severance is provided, this is referred to a wrongful dismissal.
What is “working notice”?
Absent an employment contract that says otherwise, every employment relationship has an implied term which requires an employer to give an employee advanced notice of the date which will mark the end of the employment relationship. The employee is obligated to keep working for the employer until the date they were notified of arrives, at which point the employment relationship ends. This is called “working notice”.
Absent a contract that specifies the notice period, the length of what is appropriate notice period depends on a number of factors, most importantly the employee’s age, how long they have worked for the employer, the employee’s position and salary, and the availability of similar employment opportunities.
What is “severance pay”?
Severance pay is a payment to an employee to compensate them for the loss of their job when they are not given reasonable working notice of termination. Severance pay is usually a one-time lump sum payment to an employee representing the wages the employee will have lost. However, depending on an employee’s compensation package the losses can be more than just salary and employers will offer what are called “severance packages” which should include compensation for all losses, restoring to the employee what they would have earned in his or her compensation package.
How do I know if my severance package is fair?
Every case will be different when it comes to a severance package. There are a number of considerations to look at, including if there is an employment contact, what the terms of the contract may be, why you are being terminated, how your compensation package was structured, amongst other considerations.
The purpose of a severance package is to compensate employees for any losses suffered due to losing their job without being given proper notice. Depending on the type of position this can include salary, bonuses, commissions, unused vacation, benefits (medical or otherwise), pension losses, loss of RRSP contributions, loss of stock options amongst other things.
You should always contact a lawyer prior to accepting a severance package to ensure you are getting what you are legally entitled to. Most employers provide initial severance package offers which are far less than employees are entitled to.
What is a “constructive dismissal”?
Constructive dismissal is when an employer substantially changes the nature of the employment relationship without proper notice and without the consent of the employee. Examples of this are when an employer changes an employee’s duties to the point that they are not the same duties that were initially contracted for, or if an employer allows a work environment to be so hostile/unwelcoming to an employee that they cannot continue working there. In these instances, while an employer has not dismissed the employee, they have allowed or created a situation to exist where the employee had no choice but to resign from employment.
What if I am being treated different than other employees because of my age, sex, religion, gender, etc.?
In British Columbia employees enjoy protection from discrimination on prohibited ground (age, sex, religion, gender, amongst others) under the BC Human Rights Code. If an employee does suffer from discrimination in the workplace on a prohibited ground they would be able to file a complaint in the BC Human Rights Tribunal.
If you feel you’ve faced discrimination in the workplace contact the lawyers at Taylor & Blair LLP right away so that we can advise you regarding your rights under Human Rights legislation.
What if I think my employment contract is unfair?
Just because you have a written employment contract does not mean there isn’t more to consider. In British Columbia the BC Employment Standards Act, the BC Human Rights Code and other similar legislation provide employees with statutory rights which can supercede written employment contracts and any attempts to try to limit an employee’s rights below legislatively mandated minimums are not legally enforceable at law.
Always seek the advice of a lawyer prior to signing an employment contract.
Can I work for more than one employer at the same time?
Absent a contract term to the contrary, there is nothing stopping you from working for more than one employer at the same time. While some employers are fine with their employees working for other companies, other employers do not like it at all, especially if the other employer is in the same industry.
Employers who do not what their employees working elsewhere will often have strict policies regarding employment disclosure or non-competition clauses in employment contracts.
It’s important to understand your employer’s policies and contract terms. An experienced employment lawyer can help you understand your rights.
What is a “Non-Competition” clause?
Non-competition (or non-compete) clauses are terms in employment contracts which restrict an employee’s post-employment activities, usually from working in a specific geographical area and for a specified period of time after employment is terminated. These are a type of restrictive covenant.
Just because your employment contract has a non-competition clause does not mean it is enforceable. An experienced lawyer can review your employment contract for you and advise you of your rights.
What is a “Non-Solicitation” clause?
Non-solicitation clauses are terms in employment contracts which prohibits an employee from actively pursuing their employer’s other employees, clients, vendors, etc. during the course of employment and for a pre-determined period of time after employment is terminated. These are a type of restrictive covenant.
Just because your employment contract has a non-solicitation clause does not mean it is enforceable. An experienced lawyer can review your employment contract for you and advise you of your rights.
Can my employer punish me for what is on my social media?
Social media is now a common means of communication, whether it is Facebook, Instagram, Twitter, Tik Tok, or any other. Most people are surprised to find out that they can be dismissed for social media posts made on their own private time, away from work. You do not have to be at work to get in trouble from your employer for your social media posts. If it is posted publicly, it can be used as a basis for discipline, including termination. Many employers now specifically include clauses in contracts and policies dealing with social media activity.
As with most things, the effect of your social media posts on your employment is extremely fact dependent, both with respect to the nature of your employment and the social media activity itself. If you have an issue with your social media use and your employment you should contact an employment lawyer for advice.
Can I be fired for being unable to go to work for medical reasons?
If you are unable to work due to a medical issue, employers are not allowed to fire you for reasons related to your medical issue or medical leave of absence. This is because terminating someone due to a mental or physical disability is contrary to the BC Human Rights code and is therefore considered discrimination.
What is a “frustration” of an employment contract?
One of the only times an employee can be let go due to a mental or physical disability/illness, is when an employee has been off work due to a medical reason for a considerable period of time, with little to no prospect of a return to work, that the employment contract has become “frustrated” at law. This means that performance of the employee’s duties have become impossible due to superseding events. When an employment relationship is frustrated there is no notice or severance owed to an employee, so it is important to contact an employment lawyer as soon as possible if you have been absent from work for a significant period of time due to medical issues.
Is my employer allowed to temporarily lay me off from work?
Generally speaking an employer can only place an employee on a temporary lay-off where it has agreed contractual terms that allow it to do so or where there is a historical practice in your industry of temporary lay offs. As such, if you are an employer, and want the flexibility to lay-off staff during periods of economic slowdown, it is essential that your employees sign an employment agreement which includes express language agreeing that he/she may be placed on a temporary lay-off in accordance with the BC Employment Standards Act (“ESA”).
If you are an employee and either do not have a written employment contract, or the contract is silent as to temporary lay-offs, your employer typically does not have the legal right to place you on a lay-off unless you have expressly agreed, or can be seen to have agreed by your conduct (i.e. have accepted past lay-offs without complaint) or if it is standard in a an industry to have regular layoffs.
If your employer attempts to impose a lay-off, you should speak immediately with an employment lawyer to ensure that your rights are protected. The courts have recognized that where an employee is placed on a temporary (unpaid) lay-off, absent a contractual right to do so, it will likely amount to a constructive dismissal under common law. These legal principles have not changed in the context of the COVID-19 pandemic.
What is a contractor?
An individual or a business that does work for another individual or business pursuant to a one-time contract is known as a contractor. Contractors are considered to be independent individuals or businesses that do not work for one employer, unlike employees. Employment laws and tax laws are applied differently to contractors than they are to employees.
What is the difference between an independent and a dependant contractor?
There are two types of contractors at law, independent contractors and dependant contractors. Dependant contractors are generally ones who contract with the same principal, over a long-standing time frame and worked closely together in carrying out their duties, as opposed to independent contractors who work with numerous principals on different jobs and are more independent in carrying out their duties.
Unlike independent contractors, dependant contractors are entitled to the same rights to fair notice periods as employees enjoy, so if you believe you qualify as a dependent contractor you should contact the lawyers at Taylor & Blair LLP right away if your rights have been affected.