When a Termination Becomes a Wrongful Dismissal

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Losing employment can be a life-altering personal tragedy. After all, a job is much more than a pay cheque. It’s a circle of important relationships and an integral part of our identity.

That being said, the creation and destruction of jobs is an everyday event and is essential to our market economy. The hard reality is that most of us will be called in to our manager’s office at some point in our careers for the dreaded termination meeting. If and when that happens, it’s important to recognize the employee’s and the company’s rights and obligations.

First, we need to acknowledge that in the non-union work environment, an employer has the right to terminate their staff at any time and for almost any reason (an employer cannot terminate for a ground protected by human rights legislation). Our courts view the employment relationship as a contract of service, and just like any other contract, either party can terminate the employment relationship.

When the employer terminates the employment contract, they have a duty to provide “reasonable notice” of the termination. Reasonable notice is a flexible legal standard designed to provide the terminated employee with sufficient time and resources to find comparable employment elsewhere. Notice can be provided as a working notice, where the employee is expected to continue working for a period of time, although most employers will normally provide “pay-in-lieu of notice” where the employee is relieved from attending work and is provided a payment of some kind. In layman’s terms, “pay-in-lieu of notice” is a severance package.

Naturally, the notice period is not the same for everybody. Here are the four traditional factors that are considered in assessing reasonable notice.

1. Age

Research has long shown that older workers are at risk of prolonged periods of unemployment. There are a number of reasons for this, including the perception that older workers cost more (higher wage and benefit expectations, higher insurance costs), outdated skills and a risk of imminent retirement. In recognition of this reality, workers that are over age 50, and particularly over age 55, are generally entitled to a large notice period.

2. Tenure

We also recognize that the longer an employee works with the same employer, the longer the notice period should be. There are a number of practical reasons for this.

Many long term employees will lack the skills needed to find a new job in today’s economy. These can include networking skills, interviewing skills, and of course resume and cover letter writing. The reality of it is that if someone has been in the same job for 20 years, they may be challenged by modern interview techniques and LinkedIn. Furthermore, our courts have recognized that in terminating a long serving employee, there should be some compensation for lost seniority.

3. The Character of Employment

Another relevant consideration is the employee’s position and responsibilities. The logic is that employees in specialized or management roles will have more difficulty finding employment with comparable responsibilities than employees with lesser duties. This factor is increasingly being criticized, however, and there is ongoing debate in the legal community as to whether it is still appropriate. Regardless, at least for the time being the character of employment continues to be a relevant factor in the Province of British Columbia.

4. Employability

Finally, we consider “employability”, a catch-all takes into consideration the employee’s education, demand for their skills or trades, the local economy and a host of other factors. In this criteria, one needs to only think of a hard working and loyal employee, but without a grade 12 education, who slowly climbs the ranks within his company only to be terminated. The probability that this same employee will be able to replicate those achievements with a different employer in today’s economy would be challenging, to say the least. By the same token, a welder, truck driver or carpenter may have more difficulty finding work in a town like Nelson than in a city like Fort St. John.

So What is a Wrongful Dismissal?

A wrongful dismissal comes about when an employee has been terminated, but their employer has not provided adequate notice based on the personal and professional considerations provided above. In these cases, the employer will have breached a contractual term of the contract, and may be liable for damages the employee has suffered.

Unfortunately, there is no magic formula for assessing reasonable notice or severance amounts. Every case is fact dependent, and in many cases assessing a proper notice period is more art than science. However, knowledgeable employment lawyers rely on legal precedents and their own experience to develop a pretty accurate assessment of what a terminated employee’s claim may be.

If you or someone you know feels they have been wrongfully dismissed, please contact our office or an employer lawyer in your jurisdiction for an assessment of your case.

David M. Brown
Kent Employment Law
LinkedIn: https://ca.linkedin.com/in/davidmjbrown
Twitter: @davidmjbrown

One thought on “When a Termination Becomes a Wrongful Dismissal

  1. Pingback: A Lesson in How Not to Conduct a Workplace Investigation | BC Employment Law

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