Employment laws in Canada offer great protections for non-unionized employees, especially when it comes to the termination of their employment — and the amount of compensation they are owed when that happens.
Many people working in B.C. don’t realize that when they are let go from their job, they are likely wrongfully dismissed. Based on my experience as an employment lawyer, it is much more common than people think.
Here are the answers to the most common questions about wrongful dismissals in B.C.
What is a wrongful dismissal?
Many people believe a wrongful dismissal is when you are fired for the wrong reason.
In fact, a wrongful dismissal occurs whenever someone is dismissed or fired by their employer without being provided advance notice of the termination.
Rather than give a worker a generous heads up that they are losing their job, which might result in a problematic work environment for the remainder of their time with the company, employers often provide severance pay instead of advance notice, or a combination of the two.
READ MORE: What you need to know about wrongful dismissals
What does wrongful dismissal look like?
Wrongful dismissal typically happens in three kinds of situations.
The first kind occurs when an employee is terminated without cause, but the employer fails to pay a proper severance package. In a termination without cause, a company can fire you for any reason, as long as they are not in violation of your human rights and they award you the proper compensation.
In the second situation, an employee is terminated improperly for cause — and without any severance pay at all. In this scenario, the employer thinks they have a legitimate reason to let the employee go without paying severance. This position is almost always incorrect, as an employee’s conduct rarely rises to the level of severe misconduct required to justify a firing for cause.
The final type of wrongful dismissal occurs when an employer changes a core aspect or condition of an employee’s job or acts in such a way that the workplace becomes unbearable for the worker. When this happens, the employer has constructively dismissed the employee. This can include a temporary layoff, which is a complete reduction in hours of work.
I’ve represented many clients in B.C. who have found themselves in one of these situations. Recently a case came across my desk that involved an employee who occupied a sales role. Her compensation consisted of a modest base salary, plus quarterly incentive payments.
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After five years of employment, the employer reduced the incentive payments without the employee’s consent, resulting in a significant drop in her annual income. As income is a key part of any employment relationship, I was able to pursue a claim for constructive dismissal, and ultimately negotiate a favourable severance package for my client.
How much severance should I get?
Contrary to popular belief, there is no defined formula to calculate severance. While the province’s Employment Standards Act may require a minimum payment of as much as eight weeks’ pay, the amount of severance you’re actually owed in B.C. can be as much as 24 months’ pay through common law. This amount is reached by considering several factors, such as an employee’s age, length of employment, their position and the availability of similar employment.
An employment contract can also have a significant impact on the amount of severance an employee may be owed when they are permanently laid off. These agreements may contain a termination clause designed to restrict an employee’s severance to the legal minimums. In many cases, these clauses are unenforceable. Many are outdated or poorly written.
Severance is not determined simply by considering your base pay. It also takes into account other aspects of your compensation, such as bonus entitlements or phone allowances.
READ MORE: 5 of the most common work situations where getting an employment lawyer can help
What should I do if I think I have been wrongfully dismissed?
If you have just been fired, it is critical that you do not sign any severance agreement from your employer before having it examined by an employment lawyer.
I recommend using our firm’s Pocket Employment Lawyer to find out if you have been wrongfully dismissed and talking to an employment lawyer at Samfiru Tumarkin LLP to determine if the severance offer falls short. The lawyer can walk you through your rights so that you have a clear understanding of what your options are.
Do I have to accept a severance offer by a deadline?
You don’t necessarily have to accept a severance offer by the deadline imposed by your employer. That two-, three- or five-day deadline that they’ve hung around your severance offer is arbitrary, and used only to pressure you to accept their offer before having it reviewed.
In B.C., a person generally has up to two years from the date of their termination to make a legal claim for wrongful dismissal. There are, however, situations where this deadline can be modified, notably in light of the COVID-19 pandemic, so it is always best to contact an experienced employment lawyer in order to make an informed decision and protect your right to compensation.
READ MORE: What you need to know before you sign a contract — even if your employer asks you to
How do you start a claim for wrongful dismissal?
If you have been fired or laid off, and you feel that you are owed more than the severance pay you have been offered, talk to an employment lawyer about starting a claim for wrongful dismissal on your behalf.
In many cases, proper compensation can be negotiated and resolved with your employer informally in a matter of weeks, without the need to go through the legal system.
Not sure if you have been wrongfully dismissed or whether you’re owed more compensation?
Contact the firm or call 1-855-821-5900 to secure assistance from an employment lawyer in Ontario, British Columbia or Alberta. Get the advice you need — and the compensation you deserve.
Darren Sall is an employment lawyer and associate at Samfiru Tumarkin LLP, Canada’s most positively reviewed law firm specializing in employment law and long-term disability claims. The firm provides free advice on Canada’s only Employment Law Show on TV and radio.