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Have you been wrongfully dismissed?


An employer may terminate an employee with or without cause.


Where an employer terminates an employee without cause, an employer must provide reasonable notice to the employee. A wrongful dismissal occurs where an employee has been dismissed by his or her employer without being provided reasonable notice.


However, when an employee is terminated with cause, and just cause exists, then that employee is not entitled to any severance.


Minimum notice periods set out in the British Columbia Employment Standards Act


Employees who are terminated without cause are at the very least entitled to the minimum notice periods set out in Part 8 of the British Columbia Employment Standards Act (the "ESA"). For example, you may have come across section 63(3)(a) of the ESA, which states that the liability is deemed to be discharged if the employee is given:


(i) one week's notice after 3 consecutive months of employment;

(ii) 2 weeks' notice after 12 consecutive months of employment;

(iii) 3 weeks' notice after 3 consecutive years of employment, plus one additional week for each additional year of employment, to a maximum of 8 weeks' notice;...


Employers may incorporate the minimum notice periods of the ESA into their employment contracts. In this circumstance, an employer would only be liable to provide the minimum ESA notice entitlements to an employee when dismissing him or her without cause. Here, an employee may not have access to reasonable notice under the common law, discussed below.


Reasonable notice under the common law


The ESA notice provisions are just a legislative minimum. You may be entitled to reasonable notice under the common law, which generally provides for a greater notice period than the periods set out in the ESA. Notice periods awarded under the common law often work out to months of notice.


At common law, the length of reasonable notice is generally determined by four factors: (1) the character of the employment; (2) the length of service; (3) the age of the employee; and (4) the availability of similar employment having regard to the experience, training, and qualifications of the employee. These factors, often referred to as the Bardal factors, are not exhaustive, and no single factor is determinative. See Younesi v. Kaz Minerals Projects B.V., 2021 BCSC 614 at paragraph 37.


With regard to length of service, it has generally been accepted by the courts in this province that short term employees are entitled to a proportionately longer period of notice. See Greenlees v Starline Windows Ltd., 2018 BCSC 1457 at paragraph 38. In Greenlees, the Court awarded a six month notice period to the 43 year old plaintiff, hired as a sales professional, who was dismissed after six months of employment.


Circumstances where common law reasonable notice may apply


If an employment agreement is of an indefinite term and does not address termination without cause, then the law implies a term that the employee must be given reasonable notice of any termination without cause. See Younesi at paragraph 37.


Further, if there is a termination clause in an employment contract, but it does not comply with the minimum statutory notice provisions set out in the ESA, then it will be null and void. See Machtinger v. HOJ Industries Ltd., 1992 CanLII I102 (SCC). If the termination clause is void, common law reasonable notice applies.


Duty to mitigate


An employee who has been wrongfully dismissed has to act reasonably by taking steps to replace his or her own income and position. This involves "constant and assiduous" application for alternative employment. See Virk v Satnam Education Society of B.C., 2020 BCSC 149 at paragraph 101. A failure to mitigate could warrant a reduction in the wrongful dismissal damages award. Therefore, it is important for a wrongfully dismissed employee to mitigate his or her damages by seeking out comparable employment.


Conclusion


The foregoing is only a brief summary on the law of wrongful dismissal and is not to be construed as legal advice for your particular situation. If you believe you have been wrongfully dismissed, consider contacting us for an assessment.




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