When Can You Sue for Wrongful Dismissal in Vancouver?

Paine Edmonds - Tuesday, November 08, 2016

Wrongful dismissal impacts many workers not only in Vancouver, but throughout British Columbia (B.C.) and it needs to be redressed quickly when it occurs. To file a claim under the B.C. Employment Standards Act, you have just six months from the termination date and to sue your employer, you have a two years from when you were let go. Anyone can sue their employer for wrongful dismissal, whether you work full-time, part-time or are an employee on probation.

Typically there are two situations where a dismissal is wrongful. Firstly, when an employer dismisses or terminates an employee without giving the employee advanced notice. A second situation is where an employer dismisses or terminates an employee without giving notice because the employer wrongfully feels that there is cause for termination.

Wrongful dismissal means being fired unfairly. The term unfairly relates to being fired without notice, without just cause, without warning that work was wrong or substandard or because you are not prepared to accept a big change in your job, such as lower wages, reduced or significantly different working hours, or different duties.

BC Employment Standards Act (the “Act”)

The Act sets out the minimum amount for pertaining to dismissal without “just cause.” However, you may not qualify for any notice or pay if you have worked for less than three months. The following is a guide outlining the pay and amount of time worked:

  • 3 months of consecutive employment, at least 1 weeks’ notice or pay is required
  • 12 months of consecutive employment, at least 2 weeks’ notice or pay is required
  • 3 years of consecutive employment, an additional week’s notice or pay for each additional year of service, up to a maximum of 8 weeks

 

What is “Just Cause?”

“Just cause” is very serious conduct and can include theft, serious dishonesty, sexual harassment, conflict of interest and other types of highly inappropriate conduct. Examples of where the courts allows an employer to dismiss a worker include serious misconduct and incapacity to perform work. Serious misconduct includes theft, fraud and dishonesty, serious and insubordination (that means disobeying your supervisor in a serious matter), breach of employer's rules that are reasonable and consistently enforced by the employer, persistent absences and lateness from work without medical or other good reason and sexual harassment. Incapacity to perform work includes serious incompetence and permanent illness or injury that cannot be accommodated by the employer without undue hardship, and is likely to continue indefinitely.

If the circumstances fit, there may be no entitlement to any payment when dismissed – other than salary and vacation pay owing up to the date of dismissal. However, employers who improperly claim that they have just cause for firing someone may have to pay extra wrongful dismissal damages for making ‘bad faith’ allegations.

What is Constructive Dismissal?

Constructive Dismissal occurs when the conditions of your employment change so much you feel as if you have been dismissed. Courts have called constructive dismissal “a fundamental change in the terms of employment.” If you are constructively dismissed, you are able to resign and sue for wrongful dismissal. This can be very risky. You should always obtain legal advice before making this decision. Examples of constructive dismissal include a reduction in pay, demotion and workplace abuse.

A reduction in pay without advance notice is almost always a constructive dismissal – as long as the reduction is significant – usually more than 5-10 percent. If your pay is reduced and you have not been given enough (or any) advance notice, the situation may constitute constructive dismissal.

If you have been demoted and are now required to perform a job that is clearly below the one you had, that may be a constructive dismissal. Similarly, if the company takes away a significant portion of your responsibilities, that may also be a constructive dismissal. Courts may look at the impact on your career, the perception of others in the company of the change and a range of other factors, including the short and long term financial impact on you.

If your employer creates – or permits – an intolerable work atmosphere, that may also be considered a constructive dismissal. Employees are entitled to be treated with dignity and respect in the workplace. If, at your workplace, you are faced with yelling, name-calling, humiliation and other similar types of behaviour, whether from a superior or a co-worker, you may have a case for constructive dismissal.

Since the Supreme Court of Canada decision in Evans v. Teamsters Local Union No. 31, the courts have held that employees can be required to return to work after being dismissed, if asked to do so by their former employers, as a way of mitigating damages. If they refuse to do so, they risk losing all of their wrongful dismissal damages. However, in Farwell v. Citair Inc., the Court of Appeal upheld a trial court decision that the plaintiff was not required to return to work after being constructively dismissed in order to mitigate his damages.

Employment Contract

A court usually will not interfere with the provisions that the parties to a contract have agreed to between themselves. This proposition of contract law is applicable to the provision of reasonable notice in an employment contract.

In an important decision of the Ontario Court of Appeal (Wallace v. Toronto-Dominion Bank), the following provision in a written contract was upheld to limit damages for wrongful dismissal to four weeks’ pay:

“The bank may terminate the Employee’s employment hereunder at any time by giving the Employee four weeks’ notice either verbally or by letter addressed to the last office or branch of the bank at which the Employee shall have served. In lieu of such notice the bank may at any time without giving the cause therefore terminate the Employee’s employment upon paying the Employee’s salary to date of separation and for four weeks thereafter.”

Employer Defences

An employer cannot be successfully sued if you are guilty of serious misconduct or incapacity to perform work as set out in the previous section. An employer cannot be sued successfully if the employer has made you aware of problems in your job performance, has given you a reasonable opportunity to correct it, and has told you that you will be terminated if you do not improve.

Proving Wrongful Dismissal

  • The first thing you have to prove is that you are an employee. That can normally be done by:
  • your letter of termination;
  • your Employment Insurance record of employment;
  • pay stubs
  • showing that you were terminated without proper notice. Your employer will then have to prove that you were dismissed for ‘just cause.’

 

Contact Paine Edmonds LLP, Employment Lawyers in Vancouver

If you feel you may have been wrongfully dismissed, it is important to obtain legal advice as early as possible. If you wait too long, you may be considered to have accepted the situation. Wrongful dismissal in Vancouver is an area of employment law that we handle routinely. Contact us at Paine Edmonds LLP for your legal consultation at 1-800-669-8599.