Difference between pages "Strategies and Tips for Employment Law (9:VII)" and "Employment Law Glossary (9:App A)"

Revision as of 23:57, 20 September 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 28, 2019.

Aggravated damages

In the context of wrongful dismissal: damages awarded as compensation for an employee’s reasonably foreseeable loss or harm that occurred due to the manner of their dismissal; generally awarded as compensation for psychological harm caused by the manner in which the employee was terminated from their employment.

Bad Faith

If an employer dismisses a person in a harsh or vindictive manner, for example by purposely humiliating the employee or by taking some other action that might mentally harm the employee, they may have dismissed the employee in a bad faith manner, and the employee may be entitled to aggravated damages.

Constructive Dismissal

A unilateral change by an employer to a fundamental term of an employee’s contract (such as pay or job duties). The change must not be condoned, and must be significant. The employee might claim this change is a constructive dismissal (or equivalent to a dismissal because of the significance of the change), even though there has been no express act of dismissal on the part of the employer.

Contract

An agreement between persons which obliges each party to do or not do certain things.

Dismissal

An employer's decision to terminate a contract of employment.

Employment at Will

An employment contract during which the employer may terminate the employment at any time. This is an American concept, as this type of employment does not legally exist in BC (or anywhere in Canada): if the employment contract purports to allow the employer to terminate the employee without notice, it is invalid and the employee may be able to obtain a severance award.

Just Cause

Misconduct by an employee, or some other event relevant to the employee, which justifies the immediate termination of the employment contract. Note that this phrase has a different meaning in the context of Employment Insurance.

Mitigation of Damages

The obligation upon a person who sues another for damages, to minimize - or mitigate - those damages, as far as reasonable.

Non-competition Agreement

A contract or a clause in a contract in which an employee agrees not to compete against their employer. These are often found to be invalid in court, particularly if a non-solicitation agreement would have sufficed to protect the employer’s interests.

Non-solicitation Agreement

A contract or a clause in a contract in which an employee agrees not to solicit customers of the employer.

Reasonable Notice

Employers must give an employee reasonable notice that their employment is to be terminated without cause, or payment of their usual salary and benefits in lieu of notice. The length of time that constitutes reasonable notice varies based on the employee’s age, length of service to the employer, and employment responsibilities, and the availability of alternate employment. The reasonable notice period can be up to approximately two years.

Restrictive Covenant

A contract in which a party agrees to be restricted in some regards as to future conduct. There are two common types: non-competition agreements and non-solicitation agreements.

Severance Pay

An amount of money an employer owes to an employee in lieu of notice of the employee’s termination.

Sick Leave

Time off from work, paid or unpaid, on account of an employee's temporary inability to perform duties because of sickness or disability.

Union

A defined group of employees formed for the purposes of representing those employees with the employer as to the terms of a collective contract of employment.

Workers' Compensation

A public benefit scheme in which qualified workers who are injured in the workplace, receive compensation, commensurate with their degree of injury, regardless of who was at fault.

Wrongful Dismissal

The failure to provide reasonable notice of the termination of an employment contract. Wrongful dismissal is a term that can apply to cases when an employer doesn’t provide enough notice or severance in the case of a without cause dismissal, or when an employer fires an employee without any notice or severance in the case of a just cause termination.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 28, 2019.

@@ Line 2: / Line 2: @@
 {{LSLAP Manual TOC|expanded = employment}}
-== Gather Evidence ==
+'''Aggravated damages'''
+*In the context of wrongful dismissal: damages awarded as compensation for an employee’s reasonably foreseeable loss or harm that occurred due to the manner of their dismissal; generally awarded as compensation for psychological harm caused by the manner in which the employee was terminated from their employment.
-Employees who face employment issues should document everything so that they will be able to provide better evidence if the case goes to a hearing or trial. Employees who are dealing with work-related or dismissal-related stress should consider seeing a medical professional as soon as possible, as medical evidence can be extremely helpful at the Human Rights Tribunal and in Court. Medical evidence is often necessary if an  employee wishes to make a claim for aggravated damages due to the manner of their dismissal, as only actual losses are compensable under this category of damages.
+'''Bad Faith'''
+*If an employer dismisses a person in a harsh or vindictive manner, for example by purposely humiliating the employee or by taking some other action that might mentally harm the employee, they may have dismissed the employee in a bad faith manner, and the employee may be entitled to aggravated damages.
-== Make a claim for EI ==
+'''Constructive Dismissal'''
+*A unilateral change by an employer to a fundamental term of an employee’s contract (such as pay or job duties).  The change must not be condoned, and must be significant.  The employee might claim this change is a constructive dismissal (or equivalent to a dismissal because of the significance of the change), even though there has been no express act of dismissal on the part of the employer.
-An employee who is dismissed may receive severance pay eventually; however, sometimes this can involve a long process.  If the employee is receiving EI, they may have sufficient financial resources to wait a longer time to receive severance pay, and so they will be less likely to be forced to take a low settlement offer to pay their monthly bills.  File for Employment Insurance immediately after being dismissed as Service Canada imposes time limits for filing.  Make sure the employee understands that if they receive a severance settlement or judgement later on, they may have to pay back some of the EI benefits received during the severance period.
+'''Contract'''
+*An agreement between persons which obliges each party to do or not do certain things.
-== Make Reasonable Efforts to Mitigate Damages and Track Mitigation Efforts ==
+'''Dismissal'''
+*An employer's decision to terminate a contract of employment.
-Employees must make reasonable efforts to mitigate their damages. This is most relevant if the employee has been dismissed; the employee will  be making a claim for damages in lieu of reasonable notice in Small Claims Court or the Civil Resolution Tribunal, or a claim for lost wages at the Human Rights Tribunal, and  they must make reasonable efforts to mitigate these losses by searching for similar work. The employee should document their search for work. Note, however, that if the employee is successful in finding work, they will have successfully mitigated their damages, and will therefore be entitled to less compensation for lost wages or reasonable notice.
+'''Employment at Will'''
+*An employment contract during which the employer may terminate the employment at any time.  This is an American concept, as this type of employment does not legally exist in BC (or anywhere in Canada): if the employment contract purports to allow the employer to terminate the employee without notice, it is invalid and the employee may be able to obtain a severance award.
-Employees should also be encouraged to keep accurate records of their job search efforts, for potential use as evidence at court.
+'''Just Cause'''
+*Misconduct by an employee, or some other event relevant to the employee, which justifies the immediate termination of the employment contract. Note that this phrase has a different meaning in the context of Employment Insurance.
-== File a claim as soon as possible ==
+'''Mitigation of Damages'''
+*The obligation upon a person who sues another for damages, to minimize - or mitigate - those damages, as far as reasonable.
-Once an employee finds a new job, they begin to mitigate their damages and this will reduce their severance award. File a claim as soon as possible; if you can reach a settlement agreement or have the case tried before the employee finds a new job, you may avoid this problem.
+'''Non-competition Agreement'''
+*A contract or a clause in a contract in which an employee agrees not to compete against their employer. These are often found to be invalid in court, particularly if a non-solicitation agreement would have sufficed to protect the employer’s interests.
-== Complex vs. Simple Claims ==
+'''Non-solicitation Agreement'''
+*A contract or a clause in a contract in which an employee agrees not to solicit customers of the employer.
-If a claim is filed that is relatively simple, the employee is more likely to get through the process more quickly; this is helpful if you wish to try to finish the process before the employee gets a new job and begins mitigating their damages. However, there can also be benefits to adding claims for aggravated or punitive damages or various torts, and benefits to splitting a claim into more than one forum; namely, there is the potential for a greater award and the potential for tax advantages on the damages received. Consider the strength of the claims, how important it will be for the employee to receive money quickly, and the likelihood of the employee finding a new job and mitigating their  damages, before deciding whether to make a simple claim for severance pay, or to add additional claims.
+'''Reasonable Notice'''
+*Employers must give an employee reasonable notice that their employment is to be terminated without cause, or payment of their usual salary and benefits in lieu of notice. The length of time that constitutes reasonable notice varies based on the employee’s age, length of service to the employer, and employment responsibilities, and the availability of alternate employment. The reasonable notice period can be up to approximately two years.
-== Consider the Tax Consequences when Negotiating a Settlement ==
+'''Restrictive Covenant'''
+*A contract in which a party agrees to be restricted in some regards as to future conduct. There are two common types: non-competition agreements and non-solicitation agreements.
-An employee must pay tax on the portion of an award that is given in place of the wages they would have received during their reasonable notice period.  However, if part of the damages is instead awarded as aggravated or punitive damages (in Small Claims Court or BC Supreme Court), or as damages for injury to dignity, feelings, and self-respect (at the BC Human Rights Tribunal), this portion of the award may not be taxable.  Consider structuring a written settlement agreement to allocate a reasonable portion of the award to these potentially non-taxable categories of damages.  Note that this chapter, and LSLAP, cannot provide tax advice, and an employee may wish to consult an accountant or tax lawyer or the Canada Revenue Agency to determine exactly which amounts of a final settlement are taxable.
+'''Severance Pay'''
+*An amount of money an employer owes to an employee in lieu of notice of the employee’s termination.
-== Consider splitting the claim into different forums ==
+'''Sick Leave'''
+*Time off from work, paid or unpaid, on account of an employee's temporary inability to perform duties because of sickness or disability.
-In some cases, it may be advantageous to split up the various employment issues an employee faces, and proceed in different forums based on which forum will award the greatest amount of money for each legal issue.
+'''Union'''
+*A defined group of employees formed for the purposes of representing those employees with the employer as to the terms of a collective contract of employment.
-For example, one may wish to claim overtime pay and vacation pay at the Employment Standards Branch, and claim severance pay in Small Claims  Court. This could be beneficial because overtime pay (at the 1.5 or 2 times hourly rate) is only legally required under the ''ESA'' (unless the employee’s contract calls for overtime pay to be paid), so claims for it can only be brought at the Employment Standards Branch; however,  severance pay tends to be significantly greater in Small Claims Court.
+'''Workers' Compensation'''
+*A public benefit scheme in which qualified workers who are injured in the workplace, receive compensation, commensurate with their degree of injury, regardless of who was at fault.
-Often it will be best to keep the entire claim in one forum. Note that section 82 of the ''ESA'' states that once a determination has been  made by the Employment Standards Branch, the employee may commence another action only if the Director gives written permission or the Director  or tribunal cancels the determination. This prevents the possibility of “double recovery”; if an employee received damages for an action in one forum, they may not receive the same damages in another. However, even if an employee has already gone through the Employment Standards Branch  to obtain the minimum statutory entitlement for length of service under the ''ESA'', they are still able to make a claim in court for contractual breaches such as wrongful dismissal, and therefore they may potentially obtain additional severance pay (''Colak v UV Systems  Technology Inc'', 2007 BCCA 220). Nonetheless, proceeding at the Employment Standards Branch to claim the statutory minimum entitlements for  length of service can be problematic for several reasons. Firstly, if the employee is also going to be proceeding in Small Claims Court for wrongful dismissal, a claim at the Employment Standards Branch may simply cause an extra expenditure of effort with no additional benefit. Secondly, if the Employment Standards Branch makes a determination as to whether or not there was just cause for dismissal, this determination is likely to be adopted by Small Claims Court if a claim is later filed there. It should be considered that of these two forums, only the Small Claims Court decisions are made by judges, so if it is anticipated that there may be complex legal arguments on the issue of just cause, it may be beneficial to proceed in Small Claims Court.
+'''Wrongful Dismissal'''
+*The failure to provide reasonable notice of the termination of an employment contract.  Wrongful dismissal is a term that can apply to cases when an employer doesn’t provide enough notice or severance in the case of a without cause dismissal, or when an employer fires an employee without any notice or severance in the case of a just cause termination.
-== Consider Defeating Signed Release Agreements ==
-An employee may have already signed a release agreement that waives any liability against the employer. This is not the end of the claim.
-In considering a signed release agreement, you should first ensure that it applies to the situation at hand. For example, a release of all liability pursuant to the Employment Standards Act may not prevent an employee from recovering in common law
-If the release agreement is grossly unfair for the employee, it may also be set aside on grounds of unconscionability. The British Columbia Supreme Court has recently adopted Alberta’s test for unconscionability in the context of a severance release as follows: (''Manak v. Workers’ Compensation Board of British Columbia'', 2018 BCSC 182 at para 90)
-A contract is unenforceable for unconscionability if:
-•	It is a grossly unfair and improvident transaction;
-•	The victim did not receive independent legal advice or other suitable advice;
-•	There exists an overwhelming imbalance in bargaining power caused by the victim’s ignorance of business, illiteracy, ignorance of the language of the bargain, blindness, deafness, illness, senility, or similar disability; and
-•	The other party knowingly took advantage of this vulnerability.
-A contract is also unenforceable if it was entered into under duress.

Difference between pages "Strategies and Tips for Employment Law (9:VII)" and "Employment Law Glossary (9:App A)"

Revision as of 23:57, 20 September 2020

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