Wrongful Dismissal

The term is something of a misnomer: in the absence of a contract (for example, a collective agreement) an employer can always dismiss an employee without any need to give a reason, truthful or otherwise. The only role a court will assume (except in the case of a federal undertaking, where the Canada Labour Code offers some alternative remedies) is to impose upon the employer the need to provide “reasonable notice” to an employee who is dismissed without cause.

The factors that enter into the calculation of this reasonable notice are multifarious, but the primary ones are age, length of service and the nature of the employment from which the employee is terminated. The frequent refuge of the employer is the B.C. Employment Standards Act. This Act – out of which one cannot contract – represents the Provincial minimum in the areas covered. As an example, one can best cite the fact that the Act’s maximum notice is eight weeks. But under Provincial (common) law, the maximum is effectively 24 months. The provision of reasonable notice does not, however, mean that the employer is required to pay money forthwith upon termination. The obligation may be fulfilled by requiring the employee to work during the notice period or to report on a regular basis upon income received from other employment (though not E.I. income). This is because there is a positive obligation to mitigate, i.e. lessen the damages consequent upon termination by the obtaining of reasonably similar alternative employment.

An allegation of cause for dismissal brings in a new set of factors. Fundamentally the need is to demonstrate that the employee (and perhaps also the employer) has acted so contrary to the contract of employment that the employee has evidenced a wish to no longer be bound by the contract of employment (i.e. theft, insubordination, etc.). But the employer has to prove cause, frequently too high an evidentiary hurdle: the employee will normally get the benefit of the doubt.