Wrongful Dismissal Definition
RULE: In the absence of a termination provision in a contract, an employer must provide reasonable notice or pay in lieu
An employee may make a claim for wrongful dismissal if: (A) The employer did not have just cause + (B) Did not give sufficient notice or pay in lieu
Which is more substantial? ESA requirements or Common Law?
How long do EEs have to file with wrongful term with courts?
Which court?
who pays for court costs?
Common-law; even though 8 weeks is the min ESA, common law has higher demands
2 years to file
Up to 35,000 small claims court
35,000+ BC supreme court only
typically each party is responsible for each costs
Other forms of damages in wrongful dismissal (3)
- reasonable notice (all other factors)
- moral damages or aggravated damages
- ER owes duty of good faith/fairness or manner of dismissal,
- monetary award based on proven damages -losses- not arbitrary extension of notice
- mental distress - Punitive damages
- for conduct: harsh, vindictive, malicious and reprehensible & compensatory damages insufficient to deter bad behavior
EE’s Duty to Mitigate
1) which law?
2) duty to find ___
- take _____
- ER prove failure to mitigate by showing _____
1) common law
2) find comparable work to lessen the damages owed by ER
- take reasonable steps
- comparable jobs available & EE did not take reasonable steps to get those jobs
Duty to mitigate may require returning temporarily to job employee was fired from if that job is offered + if: (3)
- Salary remains the same
- Working conditions not different + not demeaning
- Personal relationships involved not acrimonious
Constructive Dismissal Definition (2 situations)
- Employer makes a fundamental + unfavourable change to EC without:
a) Providing reasonable notice +
b) Explaining consequences of rejecting change - Employer’s conduct indicates desire to end employment
a) Employee is entitled to resign in response + claim damages
b) Test: Would reasonable person in employee’s position find changes imposed by employer unreasonable + unfair?
More details on two constructive dismissal situations (2)
1) Change to Employment Contract:
- Changes to compensation package
- Changes to job duties (Often downgrade in responsibilities, authority / status)
- Geographic relocations
- Changes to hours + scheduling
- Layoffs without express / implied term
2) Untenable work environment
- Can be subtle: Series of small events add up to hostile workplace
- Employers also have obligation to prevent workplace bullying/ harassment
- Makes cont. employment intolerable
Constructively dismissed EE should not (2)
1) If continue working, may be viewed as condoning change
2) If resign, court may later find change was not significantly fundamental
Employee should continue working if (3)
1) Salary offered in new position is similar to former position
2) Working conditions not substantially different/ demeaning
3) Relevant personal relationships not acrimonious
12 steps to avoid wrongful dismissal claims
- Hire carefully
- Include + update employment contract termination clauses
- Use probationary periods
- Create a paper trail
- Provide reasonable notice of changes
- Determine whether a just cause claim is sustainable
- Absent just cause, determine appropriate notice
- Handle terminations professionally
- Provide outplacement counselling
- Get signed release, where possible
- Carefully consider all issues when providing letter of reference
- Provide ROE in a timely manner: Within 5 days of last day
Confidentiality definition
Non Competition
non-solicitation (restrictive cov.)
May not disclose ‘confidential’ info - always applicable for lifelong - trade secrets belonging to former ER
May not compete with previous employer e.g.: Starting own business in direct competition - always period applicable
Entice co-workers (strategic) / Customers of employer to new business - always period applicable
Tests of Confidentiality (4) with examples
- Info would be injurious to employer or helpful to its competitors if released and/or
- Info is secret (not in the public domain) and/or
- Above 2 beliefs must be reasonable
- Must be judged in light of industry /trade concerned
Examples: Computer programs; algorithms Lists (suppliers, customers, employees) Assessments Processes
Gives the Business a comp. edge or would harm business if divulged
Fiduciaries definition
Originally was very restrictive: Only encompassed very senior executives
- Those vested with power & responsibility to guide + direct affairs of business
- Officers (the “C Suite”): CEO, CFO, COO, etc.
- Other very senior employees
- less senior employees so long as they play a key role in business
Fiduciaries added responsibilities (3)
- Cannot quit + take advantage of business opportunity that they discover while employed unless they first disclose opportunity to employer + give employer opportunity to exploit it
- Must disclose any info that might reasonably impact on business
E.g.: Plans to quit / Start a new business, etc. - Cannot compete / solicit away customers for reasonable period after employment ends
What is reasonable notice?
What is the purpose of notice?
Factors determine appropriate length of notice or Payment in Lieu of Notice
To allow EE time to look for another job
