Employment Law – Myths v. Truths

Myth v. Truth # 1

Myth:If I am fired without just cause, the courts will give me my job back.
Truth:Unless you are in a union, a senior administrative officer in a government bureaucracy (or perhaps a religious minister) or one of the few employees working in a federally regulated industry protected by the Canada Labour Code, generally you will not be entitled to get your job back even if your dismissal was wrongful. In fact, there is no such thing as wrongful dismissal in most non-union cases. An employer in British Columbia is usually entitled to dismiss an employee without any good reason (unless the dismissal is in violation of the Human Rights Code), and is not required to give any reasons at all. All that most non-union employers are required to provide in British Columbia is reasonable notice of termination or payment in lieu of notice. For example, most employers can avoid liability completely by telling their employee their job will end at a future time which the court would regard as fair notice, but still require the employee to work during that time. Alternatively, most employers can ask the employee to leave the work site immediately, but fulfill their legal obligations by providing the employee with sufficient severance pay and benefits if they do not have just cause at law for summary dismissal.

Myth v. Truth # 2

Myth:An employer only has to pay the amount of severance set out in the Employment Standards Act, which provides for a maximum of eight weeks severance on termination.
Truth:The Employment Standards Act provides only the minimum length of notice an employer must give employees dismissed without just cause. In virtually every case, the courts will award a greater amount of notice than that provided by the Employment Standards Act up to a rough upper limit of 24 months pay in lieu of notice.

Myth v. Truth # 3

Myth:If I am dismissed without just cause, I will immediately be entitled to severance pay for the length of time the courts allow in similar cases.
Truth:In virtually every case, including some cases where the courts have found you must accept new work with the same employer, an employee has a duty to look for other similar employment at a similar pay rate. While an employee is not obligated to take any job offered regardless of the pay rate, he must act reasonably in his own interests or the courts will find that he should have taken a reasonable job offer and reduce his claim accordingly. If an employee earns employment income after termination during the notice period which the court finds to be reasonable, everything the employee earns reduces his claim against his former employer. At law, this is known as the duty of mitigation, which means an employee must make reasonable efforts to find replacement employment in the marketplace despite the reality that if he is successful, it will benefit his former employer.

Myth v. Truth # 4

Myth:If I am wrongfully dismissed from a non-union employer, I will be entitled to one months notice for every year I work for my former employer if the court finds I was dismissed without just cause.
Truth:While the one month per year of service rule is a rough rule of thumb for many managerial employees, it can be very misleading even for that category of employee. For example, many managerial employees have received three months pay in lieu of notice after having worked only one year. Virtually all employees are subject to a rough upper limit of 24 months pay in lieu of notice no matter how long they have worked. Very senior managerial employees are often entitled to substantially more than one month per year up to the rough upper limit. Non-managerial employees are typically entitled to approximately two or three weeks per year of service, but there are a few cases in which they have been awarded substantially less and a number of cases in which they have been awarded substantially more. Sales employees are often entitled to nearly as much notice as the managerial employees. However since a recent decision of the Supreme Court of Canada, employees dismissed in circumstances of bad faith conduct by their employers may be entitled to a longer notice period.