Part II of - Introduction to Wrongful Dismisal / Wrongful Resignation / Employment Contract Termination Laws in BC
Continuation of an introductory guide prepared by Vancouver, BC lawyer Rose A. Keith, it is intended "... to provide you with a guide only, not legal advice with respect to your particular situation " -- for legal advice we suggest you contact a lawyer experienced in the area of employment law.
| Employment Standards Legislation
| Human Rights Legislation
| Other Damages
| Punitive & Aggravated Damage
The provisions of the Employment Standards Act [each Province has their own act] contain the minimum
requirements that employers must adhere to in employment
relationships. The Employment Standards Act contains provisions of a
variety of matters, including the following:
- Hours of work;
- Minimum rates of pay;
- Payment of overtime;
- Minimum notice of termination required.
As indicated these are the Minimum standards that must be complied
with in any employment relationship. The standards with respect to the
notice of termination required do not reflect what Judges will typically
rule must have been required in any particular case. It is extremely rare
for a Judge to rule that compliance with minimum notice requirements
in the Employment Standards Act satisfies an employer's duty to provide
reasonable notice of termination.
Human Rights Legislation has been enacted in Canada to prevent
discrimination on certain enumerated grounds, including race, religion,
disability, sex and sexual orientation. Your employer has a duty to
ensure that you are not being discriminated against in your employment
on any of the specified grounds. Discrimination on the basis of sex
includes sexual harassment. [emphasis added]
If you have been the victim of
discrimination, the Human Rights Act may provide a remedy for you.
An employee is entitled to be compensated for any loss that he sustains
as a result of the failure to provide reasonable notice. This will include
not only the wages that would have been earned during the period of
notice, but also any benefits or other costs incurred by the employee as a
result of the failure to provide reasonable notice.
Some examples of other damages which may be owing if an employer
fails to provide reasonable notice are as follows:
- Bonuses;
- Stock Options;
- RRSP contributions;
- Medical coverage;
- Extended medical coverage;
- Dental coverage;
- Long term disability;
- Short term disability;
- Life insurance coverage.
The above is not an exhaustive list of the potential damages that an
employee may be able to recover if he has been terminated without
reasonable notice. In any wrongful dismissal case all the factors of
compensation must be considered and all potential losses canvassed to
ensure that you have been adequately compensated.
Termination of employment is often accompanied by an emotional
reaction, particularly when the termination occurs without cause. This
often results in employees expecting compensation for "what the
employer has done to them".
A wrongful dismissal case is a breach of
contract case.
Damages for hurt feelings are not awardable. [emphasis added]
The damages a dismissed employee is entitled to will generally be limited to
the damages arising from the failure to provide reasonable notice of the
termination.
If the circumstances of the termination were particularly distasteful, in
terms of the manner in which the dismissal itself was carried out, there
may be compensation available for the manner in which the dismissal
occurred. This is referred to as punitive or aggravated damages.
The purpose of these types of damages is not to compensate you for your
loss, but to punish the employer for some type of wrongdoing.
The factors the Courts consider when determining whether an award of
punitive or aggravated damages is appropriate include:
- Whether the termination was carried out in a particularly offensive
way;
- Whether allegations of cause for termination are maintained
without justification;
- Whether you were fairly dealt with upon termination including
such things as all outstanding pay being provided;
- Whether the employer failed to provide you with a letter of
reference;
- Whether the employer has taken steps which will impact upon
your ability to find replacement employment.
Each case turns on its facts. Aggravated and punitive damages are only
infrequently awarded. The above list provides you with a basic
understanding of the type of situations that may result in an award of
Aggravated or Punitive damages. It is not an exhaustive list. In essence
what a court is considering is whether the employer is guilty of egregious
or reprehensible conduct in the manner of termination.
When your employment is terminated, you have a duty to "Mitigate" your
damages. This means you must do everything reasonable to lessen the
amount of losses that you suffer due to the breach of contract. You will
not be compensated for losses which could have been avoided by you by
taking certain reasonable steps. This requires you to make reasonable
efforts to seek replacement employment. I always advise clients to keep
a detailed record of everything that they do to find replacement
employment.
Due to the duty to mitigate, anything you earn during the period of
reasonable notice, will be deducted from the amount your past employer
must pay you. For example, if a Judge finds that your employer should
have given you 6 months notice of your termination and this would have
resulted in a payment to you of $30,000.00 and you managed to earn
$10,000.00 during the 6 month period of notice, the employer will only
be required to pay you $20,000.00.
Conclusion
The above provides you with an outline of the various considerations
which may apply if you have been terminated from your employment.
Every situation will depend on its facts and the above is meant to provide
you with a guide only, not legal advice with respect to your particular situation.
Rose A. Keith, Barrister & Solicitor,
Vancouver, BC, Canada
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Rose Keith, Barrister & Solicitor is the author of the above article about
wrongful dismissal and employment law -- she also contributes to other areas
CanadaLegal.info. See her web site on employment law at
www.rosekeith.bc.ca/employment-law-legal-advice
See also her article: Employers: “Reasons to Call Your Employment Lawyer Before You Think You Need Them”www.businessmatrix.com/ca-bc-employment/employment-law-plan-rk130921a.html
Her legal practice in Vancouver focuses primarily on the areas of Personal Injury Law and BC Employment / Contract Disputes
where she represents both employees and employers.
A detailed profile of Rose is available on this site click here
A detailed street map to her offices in downtown Vancouver showing her location and its proximity to the Provincial and Supreme Court buildings
is available click here
See also her web site at www.rosekeith.bc.ca
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Twenty Questions to Ask - Before You Hire a Lawyer
An excellent Checklist for someone to use in selecting a lawyer, has been prepared by the publishers of
www.lawyers-bc.com/tips.htm. You will find these guidelines useful
for not just Employment Lawyers but other types of lawyers special services also.
Employment Law as a Preferred Area of Practice
The Law Society of BC has lawyers who have stated
a particular "preferred area of practice"
Employment Law is one of these P.A.P's.
Not all lawyers who advertise in: telephone directories; on the Web or in magazines have
stated their Preferred Area of Practice with the Law Society of BC directory.
Web site Disclaimer
This site lists lawyers with areas of practice including Canada Citizenship and Immigration / Refugee Law -
we advise you to verify if the lawyer is still maintaining their membership
with the Law Society of BC by going to www.lawsociety.bc.ca
as lawyers move or change areas of specialization over time.
The intent of this web-site is to provide "starting points" for people looking for sources of
legal information and specialists. Information on this web site is not to be seen as legal advice -- for that you directly consult a lawyer.
This site is not endorsed by web sites to which it provides links to, unless otherwise noted, where a particular
lawyer has volunteered to become a content contributor.
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See www.GetDiversity.com
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