Have I been wrongfully dismissed?

Have I been wrongfully dismissed?

Getting dismissed from your employment can be a very stressful event in one’s life and it is important to know your rights when dealing with the aftermath of a dismissal. The first question to look at is whether you have been dismissed with or without cause. If you have been dismissed with cause (or “just cause”) you will likely not be entitled to severance or working notice.

Just Cause

If you have been dismissed for “Just Cause” it generally means that your employer believes you have committed a serious employment infraction that has unilaterally caused a breakdown in the employment relationship. Examples would include violence in the workplace, theft, or dishonesty.

Sometimes there are clauses drafted into employment agreements allowing an employer to dismiss an employee for cause. Where such clauses are absent, the law will insert an implied unwritten term into the contract permitting dismissal for cause. Being dismissed for cause likely means you will receive no severance, and no working notice of any kind, It is essentially punishing the employee for their serious misconduct.

There is no statutory framework outlining the threshold for misconduct that justifies dismissal for cause. Just cause is reserved for the most serious of cases. When misconduct is present, the courts will generally look at whether the employer had provided a warning for similar misconduct beforehand, or whether the employer knew about the misconduct for a period of time and did nothing until termination (what is known as condonation). In circumstances where no warnings were given or there was condonation the court may find the employee’s conduct did not cross the threshold justifying termination for cause.

Without Cause

The majority of dismissals we see in British Columbia will be without cause dismissals. Without cause dismissals can occur for a variety of reasons such as cost-cutting, downsizing, or poor employee performance. When an employee is dismissed without cause the employer must give the employee appropriate working notice. Working notice is the time the employee is notified of their dismissal and the time they are required to stop working for that employer. In many scenarios, the employer will waive the notice period and pay the employee for that period in lieu of work. However, there are instances where an employer will require the employee to continue working until the notice period expires (such as when a replacement employee requires training).

If an employer does not require the employee to continue working during the notice period the employer must provide severance in lieu.

Severance

The amount of notice or severance required for each employee differs for a variety of factors. Generally, the contract will set out severance and notice periods. However, there are minimal statutory requirements that employers must follow.

The Employment Standards Act outlines the minimum requirements employers must follow for provincially regulated employees. The minimum requirements for working notice or severance in lieu of notice is as follows:

a)    3 months employment or less = No notice or severance

b)    More than 3 months employment = One week of notice or severance

c)    More than 1 year employment = Two weeks of notice or severance

d)    More than 3 years employment = Three weeks of notice or severance plus one wee of notice for each additional year to a maximum of eight weeks

The Canada Labour Code outlines the minimum requirements employers must follow for federally regulated employees. The minimum requirement to qualify for working notice or severance in lieu of notice is 1 year of continuous employment. For this, the employee is entitled to 2 days pay for each full year of continuous employment with a minimum of 5 days pay.

For both of these statutory schemes an employer is required to provide severance or working notice except in the following circumstances:

a)    When a lay-off doesn’t result in termination of employment;

b)    When an employment contract contains an end-date and the contract ends;

c)    When an employee is dismissed for just cause; and

d)    When an employee quits or terminates their own employment.

The first step when analyzing a wrongful dismissal is to determine whether the provincial or federal scheme applies. After, it is important to look at the contract as there are often clauses concerning termination the parties had agreed to. Finally, it is important to look at whether there is a common-law severance entitlement that exists.

Common Law Severance

Common law severance refers to wrongful dismissal cases that have gone before a judge through the litigation process. During this process a judge will look at various factors such as length of employment, availability of similar employment, and the age of the employee to determine what notice period or severance is appropriate. The leading case looking at which factors to consider when determining reasonable notice and severance is Bardal v. The Globe and Mail (1960 ONSC 294). Lawyers are able to assess whether or not a claim falls into a similar scenario as a previously decided case or whether those cases are distinguishable.

Each and every case of dismissal is unique. Examining the statutory framework, the employment contract, the conduct of the employee and factors present in the job market will determine the appropriate severance. If you have been dismissed, seeking advice from an employment lawyer is in your best interest.

Other subjects in wrongful dismissal that can be looked at during wrongful dismissal such as mitigation and constructive dismissal are outside the purview of this paper.