Part II of - Introduction to Wrongful Dismisal / Wrongful Resignation / Employment Contract Termination Laws in BC

Continuation of an introductory guide prepared by Vancouver, BC workplace 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

Employment Standards Legislation

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:

1. Hours of work;
2. Minimum rates of pay;
3. Payment of overtime;
4. 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

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.

Other Damages

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:

1. Bonuses;
2. Stock Options;
3. RRSP contributions;
4. Medical coverage;
5. Extended medical coverage;
6. Dental coverage;
7. Long term disability;
8. Short term disability;
9. 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.

Punitive and Aggravated Damages

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:

1. Whether the termination was carried out in a particularly offensive way;
2. Whether allegations of cause for termination are maintained without justification;
3. Whether you were fairly dealt with upon termination including such things as all outstanding pay being provided;
4. Whether the employer failed to provide you with a letter of reference;
5. 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.

Duty to Mitigate

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, Q.C.
Barrister & Solicitor,
Workplace Lawyer
Vancouver, BC, Canada
Web contact: https://www.harpergrey.com/lawyer/rose-keith/

| Return to PART I of Employment Law Article | Go to home page of CanadaLegal.info | 

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Rose Keith, Q.C., Barrister & Solicitor is the author of the above article about wrongful dismissal and employment law -- she also contributes to other areas CanadaLegal.info. 

See also her article: Employers:  "Reasons to Call Your Employment Lawyer Before You Think You Need Them"type="text/css"5412 www.businessmatrix.com/ca-bc-employment/employment-law-plan-rk130921a.html

Her legal practice in Vancouver focuses on Workplace Law helping both employers and employees find solutions to workplace issues. See her professional profile on workplace / employment law at https://www.harpergrey.com/lawyer/rose-keith/

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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.

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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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