Wrongful dismissal

In this topic "What is a Wrongful Dismissal?", it is assumed that termination of employment has occurred by the choice of the employer not the employee, and there is no "just cause" for the termination. Just cause is really employee behaviour that is so prejudicial to the employment relationship that the employer is justified in terminating employment immediately without any warning or notice. The topic of just cause is more fully discussed under the tab "Just Cause".

Most people can sense when they have been dealt with unfairly by their employer. This sense of unfairness becomes most acute at dismissal from employment. Many employers are simply ignorant of the requirements of the common law in an employment termination situation, and terminate employment in a manner that is unlawful and unfair. The common law of wrongful dismissal is meant to address that unfairness. The common law requires the employer to provide the dismissed employee with what is known as "reasonable notice".

Often, the employer, having acted in ignorance of the requirements of the common law, merely needs to be told with authority that the dismissal is wrongful, and told what they must do to correct the wrong and make it right. This is where your wrongful dismissal lawyer comes in.

In most circumstances, at common law, an employer is entitled to bring an end to the employment relationship it has with the employee. To bring an end to the employment relationship, the employer must do so lawfully. In order to end the employment relationship lawfully, there are a number of potential factors the employer must recognize and deal with, and a number of things the employer must provide to the dismissed employee upon termination. Central to these factors is the concept of reasonable notice. Most employers fail to understand their obligations at common law, and therefore fail to provide reasonable notice to the employee.

In each Province and Territory, and for Canada federally, there are statutes or legislation that deal with certain aspects of employment termination. Mostly, these statutes or legislation set out a minimum requirement the employer must adhere to at termination of employment. The minimum requirements set out in the legislation is not reasonable notice in most cases. It is crucial to note that operating entirely separately from but at the same time as such statutes or legislation is the common law, which sets the standard for reasonable notice.

To outline the difference between what the legislation and the common law provide in the same case, the following actual British Columbia case. The employee was of average age and he worked as a sales manager, and worked for a period of only seven months for the employer prior to dismissal. Under the Employment Standards Act for British Columbia, the employee was entitled to one (1) week's pay at the point of termination. This is the pay in lieu of notice he was given by his employer at termination. The employee sensed this was unfair. He was correct. A wrongful dismissal claim was commenced and at trial, the Court awarded the dismissed employee seven (7) months of his pay as the reasonable notice that the common law called for in the circumstances. Not every case will end up this way, but the example is illustrative of the significant difference between the minimum standard set out in legislation, and the common law standard of reasonable notice. It is the common law that your wrongful dismissal lawyer will deal in.

Most often, a wrongful dismissal claim arises because the employer has terminated employment but has failed to recognize and address the factors set out in the common law relevant to that particular termination. A wrongful dismissal occurs when the employer terminates the employment relationship with the employee in a manner that fails to provide to the employee what the common law requires in the circumstances. Each employment termination, and the factors that make that termination either rightful or wrongful at common law, is determined on the facts of that particular termination. Therefore, if you feel you have suffered a wrongful dismissal, it is important that you seek legal counsel from a lawyer who practices in the area of wrongful dismissal, and place all the facts before the lawyer.

If your employment has been terminated by your employer and you sense that it has resulted in an unfairness to you, then fill out and submit the questionnaire form and you will receive an initial no-charge legal consultation from us.

A note of caution. Within the Province of British Columbia there is legislation entitled the Limitation Act R.S.B.C. 1996, c. 266 that places a limitation on claims for wrongful dismissal. The limitation for wrongful dismissal in general is six (6) years from the date the right to commence the action arose, and the Act requires that an action be commenced in the appropriate court within the stipulated limitation time, or the right to make the claim afterwards will be permanently lost. Also note that some wrongful dismissal claims contain within them a fact pattern that exposes what is known as a tort law claim. Limitations for such claims are generally two (2) years from the date that the right to make such claim arose. If you are unsure about what any of this means, then please discuss the facts with the lawyer of your choice or contact me immediately.