Termination of the Employment Contract
Many issues arise upon termination. Most people are familiar
with the term “severance” but many do not understand
where it comes from. Generally, there is an unwritten term
in every employment contract that the contract cannot be terminated
without reasonable notice being given, or pay in lieu of notice – also
known as “severance”. This applies to both
parties, although the length of notice for each will likely be
different. However, if there is just cause, the employment
contract can be terminated immediately, without any notice at
all. We caution though, that each situation depends
on the individual circumstances, including whether there
is a specific term in the contract dealing with termination which
may override the general principle. To know for sure, you
should always discuss the contract with a lawyer before acting.
You should also be aware of the other issues that arise upon
termination such as Employment Standards requirements,
benefits continuation, human rights complaints, employment insurance
claims, and vacation pay.
For the Employer:
In general, just cause can be challenging to establish
without a well documented case against the employee. Just
cause can result from the culmination of a number of incidents
of misconduct, or sometimes, just one egregious act. In
many circumstances, the employer is expected to warn the employee
and impose less serious sanctions for misconduct before relying
on the drastic remedy of termination. Each case will
depend upon its own circumstances. Accordingly, keeping
detailed records of any form of misconduct will assist if the
employer finds the need to terminate in this fashion. Before
dismissing an employee for cause, we recommend that the company
consult with a lawyer to determine whether cause exists or
can be established if the matter proceeds to Court. We
also recommend consulting a lawyer to develop an exit strategy
for the employee in order to minimize disruption to the workplace,
and to maximize the ability to handle the matter in a dignified,
non-confrontational way.
If the employer wishes to terminate the contract without cause,
there are a many different ways to achieve this. Much will
depend upon how much notice is required and whether the employer
wants the employee to work for some or all of the notice period. To
best determine the applicable notice period and which strategy
to employ, we recommend consulting with a lawyer. We also
recommend consulting a lawyer to develop an exit strategy for the
employee in order to minimize disruption to the workplace, and
to maximize the ability to handle the matter in a dignified, non-confrontational
way.
For the Employee:
Put simplistically, employers have just cause to terminate your
employment if you breach – fail to abide by – the
employment contract. Typically, this requires a number
of acts of misconduct, or a very serious single act of misconduct,
before termination with just cause is justified. In instances
such as occasional tardiness or inattention, the employer would
normally be expected to first give a warning, as well as the
opportunity to remedy the failings before firing the employee. As
well, an employee cannot be fired simply because business is
bad or their services are simply no longer required. Notice
of termination or severance should be given in these circumstances.
However, if an employee steals from their employer, lies to
their employer, or demonstrates extreme insolence, the employer
may be within their rights to terminate with just cause. With
just cause, the employer does not have to provide any notice
or pay any severance.
If your employer does not have just cause to fire you, you must
be given reasonable notice, or compensation in lieu of reasonable
notice. This could be described as an appropriate period of time
to prepare for the end of the employment relationship. Depending
on the type of job, the length of employment, your age, and the
opportunities to find similar employment, it can be as long as
12 to 24 months. During this period, you are owed your
salary and the value of your regular benefits. Depending on how
it is paid, the amount of income tax owing will vary. To find
out more about income tax liability and severance pay you should
consult with your lawyer. If you do not receive reasonable
notice or compensation in lieu of that notice, then you have
been wrongfully dismissed.
In British Columbia, the minimum standards for termination compensation
are found in the Employment Standards Act. The standards
range from one week’s pay after three months of service,
up to eight week’s pay after eight years or more. However,
these are just minimum standards, so you may be
entitled to much more compensation by virtue of the law of wrongful
dismissal.
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Why Choose Double Diamond Law
 Experience – We have experience handling claims involving a wide variety
of injuries and, with a Masters in Biomechanics, Greg Diamond
has an in depth understanding of the physiology of injuries. If
you are injured in an accident, we will ensure that your rights
are protected and you receive all the benefits you deserve. Our
focus is on helping you recover from your injuries and be compensated
fully for pain and suffering, costs related to your car, medical
care, psychological suffering, lost income and other losses
and expenses.
Services
Tailored to You - We take the time to
understand all the details of your case and treat you with
utmost dignity, respect and empathy during the difficult time
after an accident. We welcome all of your questions. We
will give you valuable, tailored advice to help you preserve
evidence, obtain appropriate care, protect your rights and
facilitate your recovery.
Fees
Only If You Collect - We offer free initial
consultations on all personal injury claims. We also offer
contingency fee agreements for most cases so that no fee is
charged for our services until after your case is resolved
and only if you collect an award for damages and compensation.
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