We receive calls almost daily from employees who have been wrongfully dismissed and do not know it. We also receive calls almost every day from employers who have wrongfully dismissed an employee and fail to realize the potential significant ramifications (particularly when no employment contract exists).
Wrongful dismissal typically arises when an employee has been terminated without proper notice. While an employee can be terminated without cause for essentially any reason (barring discriminatory reasons), the employee must be given adequate notice or pay in lieu to avoid a wrongful dismissal claim.
A. Statute
The Employment Standards Act sets out the minimum notice required when terminating an employee without cause. It provides for the following entitlements based on the amount of time an employee has been employed:
after 3 months of consecutive employment, at least 1 weeks’ notice or pay is required
after 12 months of consecutive employment, at least 2 weeks’ notice or pay is required
after 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.
The Employment Standards Act is the floor and not the ceiling, unless an employment contract says otherwise (to be discussed in a further post) Employees and employers must be aware of the rights under the common law.
B. Common Law
Employees who have been terminated without cause and not given proper notice or pay in lieu may be entitled to amounts above and beyond those set out in the Employment Standards Act. The common law refers to the laws based on legal precedents established by the courts, rather than the legislative authorities.
Take for instance the example of Mr. V. He worked for the same employer in a management level position for almost 20 years. He was terminated at the age of 60 without cause and given eight weeks pay in lieu of notice (representing the maximum entitlements under the Employment Standards Act). He did not have an employment contract. Based on his age, length of service, and position, it was determined that proper notice was 20 months, not eight weeks. His employer was required to pay him for the additional amounts he was entitled to as a result of the wrongful dismissal.
What can you do as an Employee or Employer?
If you are an employee who has been terminated, phone Travis Sippel at Bradbury Sippel right away for a discussion as to whether you have been wrongful dismissed and what you may be entitled to claim from your employer.
If you are an employer, Travis Sippel at Bradbury Sippel can assist in ensuring that your employment contracts contain the proper language to protect your business from having to pay anything beyond the entitlements under the Employment Standards Act. You should also consult Bradbury Sippel prior to terminating the employment of an employee to ensure it is done in a way to minimize liability to your organization.
Travis Sippel is one of the leading employment lawyers on Vancouver Island. He works with both employees and employers on a variety of employment matters, including employment contracts, workplace policies and procedures, wrongful terminations, constructive dismissal claims, workplace investigations and human rights complaints.
Travis Sippel can be contacted by phone at 1-250-824-2423 or via email at travis@bradburysippel.com.