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Difference between revisions of "Employment Law Issues (9:V)"
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☑ Determine whether the worker has mitigated their damages. Note that if the worker has mitigated their damages during the notice period, for example by finding a new job, they will have their severance award reduced by the amount of money they earn during the notice period. If the worker does not make reasonable attempts to find a new job, they may have their severance award reduced. See [[{{PAGENAME}}#14. Duty to Mitigate | Section IV.E.14: Duty to Mitigate]]. | ☑ Determine whether the worker has mitigated their damages. Note that if the worker has mitigated their damages during the notice period, for example by finding a new job, they will have their severance award reduced by the amount of money they earn during the notice period. If the worker does not make reasonable attempts to find a new job, they may have their severance award reduced. See [[{{PAGENAME}}#14. Duty to Mitigate | Section IV.E.14: Duty to Mitigate]]. | ||
p9- | ☑ Determine whether the worker may be entitled to aggravated and/or punitive damages. If so, estimate how much they may be entitled to, and determine whether the worker has a strong case for these types of damages. See [[{{PAGENAME}}#13. Aggravated and Punitive Damages | Section IV.E.13: Aggravated and Punitive Damages]]. | ||
☑ If the worker was an employee, determine what length of notice the employee is entitled to under the ''Employment Standards Act'' (or the ''Canada Labour Code'' for federally regulated employees). Note that if at least 50 employees were terminated at once, the employee is entitled to additional notice under the ''ESA''; see [[{{PAGENAME}}#b) Group Terminations under the ESA | Section IV.E.4(b): Group Terminations]]. In the rare case that the employee is entitled to more money under the ESA than through reasonable notice, and the employee was dismissed in the past 6 months, consider filing a claim with the Employment Standards Branch. Otherwise, continue to the next step of the checklist. | |||
☑ If the worker was an employee, and was dismissed for a discriminatory reason, determine whether they have a claim with the Human Rights Tribunal (or the Canada Human Rights Tribunal for federally regulated employees); see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]. If they do have a potential claim, estimate how much the employee would be able to claim for (i) lost wages (minus any amount from the duty to mitigate), and (ii) injury to dignity, feelings, and self-respect. Compare this to the amount the employee could claim for (i) reasonable notice (minus any amount from the duty to mitigate), and (ii) aggravated and punitive damages. If the employee is likely to obtain more money at the Human Rights Tribunal, and has been dismissed within the past 6 months, consider filing a human rights claim; see [[Governing Legislation and Resources for Human Rights (6:I) | Chapter 6: Human Rights]]. Otherwise, continue to the next step of the checklist. | |||
☑ If the potential award for (i) reasonable notice and (ii) aggravated and punitive damages is under $25,000, consider filing a claim in Small Claims Court; see [[Foreword to Small Claims (20:I) | Chapter 20: Small Claims Court]]. If the worker has a strong case for an award significantly greater than $25,000, the worker should strongly consider contacting an employment lawyer to discuss proceeding with a claim in BC Supreme Court. If the potential award is only slightly over $25,000, the employee may wish to file in Small Claims Court, and waive their entitlement to any amount over $25,000, as proceeding in Small Claims Court can be less costly than proceeding in BC Supreme Court. | |||
=== 2. Employment Contract Considerations === | |||
As discussed earlier, the employer-employee relationship is contractual. Every employee has a contract, though it may not be in writing. | |||
Most employment contracts are contracts of indefinite hiring. This means that no definite term of employment was set out at the time of the contract, and there is an implied term that either party may terminate the contract upon giving “reasonable notice”. The implied term to give reasonable notice can be overridden by an express notice provision; that is, the courts will assume that an employee should be given "reasonable notice” unless the contract explicitly says something different. If there is an express notice provision in the employment contract, then that clause is binding, unless there is a reason for it to be invalid (see Section IV.D.1(a): Invalid Contracts, below). | |||
If reasonable notice is not given, then the contract is breached, and courts can award damages in the form of compensation that would have been paid during that reasonable notice period. However, if there is just cause for dismissing an employee, no damages need be paid, and no notice need be given. Note that any wage claims that crystallized before the termination of the contract are not eliminated by just cause for dismissal. Just cause only relieves the employer from notice and severance pay requirements, but not liability for past wages, etc. | |||
==== a) Successive or Expired Fixed Term Contracts ==== | |||
If an employee had successive fixed term contracts, the courts may find there is in fact an indefinite term of employment; see ''Ceccol v Ontario Gymnastic Federation'' (2001), 55 OR (3d) 614. If there was a fixed term contract and the employee continued to work after the term’s expiration, the contract then becomes an indefinite contract. If the employee had an indefinite contract, but then signed a fixed-term contract, determine whether the new contract is valid; see section IV.D.2(b): Invalid Contracts and Provisions, below. | |||
==== b) Consideration ==== | |||
Once a job offer is made and accepted, a contract is in place (though as discussed above, it may be unwritten). In order to change the terms of the contract after it is in place, there must be fresh consideration flowing from each party to the other; this means that to change an existing contract, the new contract must contain a new benefit for each the employer and the employee. Because of this, an entire written contract might be invalid if the contract was imposed on the employee after they had already accepted the job offer: the employee would already have a contract, and the written contract would need to have some new benefit, or “fresh consideration”, for the employee. Students should compare the signature dates on the written contract to the actual start dates. | |||
==== c) Invalid Contracts – Vagueness or Ambiguity ==== | |||
Vague or ambiguous contract terms may be unenforceable. Courts will examine the wording of the contract terms to determine whether a clause is enforceable for vagueness or ambiguity. If a clause is not enforceable, courts may rule on the term of agreement based on the conduct of the employer and employee and pre-contractual communication between the parties. | |||
==== d) Invalid Contracts – Contrary to ESA | |||
Any term of the written contract that does not meet the minimum standards set out by the ''Employment Standards Act'' (for provincially regulated employees) or the ''Canada Labour Code'' (for federally regulated employees) is invalid. | |||
If a term of the contract is invalid, then the employee will likely receive whatever the common law provides instead of what the contract said. | |||
For example, a termination clause might say the employee will receive 30 days notice if they are being terminated without cause. Under the ''ESA'', the employee could receive up to 8 weeks notice. The contractual termination clause would be invalid because it purports to provide the employee with less than the minimum statutory entitlement. | |||
In this example, the employee would be entitled to reasonable notice under common law. This can be very beneficial for the employee in cases where the common law provisions, such as the reasonable notice period, are better than the contractual provisions. | |||
Note that in assessing whether a term of a contract breaches the ''ESA'', one must consider the maximum entitlement that an employee could ever receive under the ''ESA'', rather than their current entitlement. | |||
In the previous example, it is irrelevant whether the employee has worked for the employer long enough to be entitled to more than 30 days notice under the ''ESA''. A contractual termination clause is not enforceable if, at any ime, the clause would provide the employee with less than his entitlement under the ESA. See ''Shore v Ladner Downs'', 5160 DLR (4th) 76. | |||
However, this principle may have been qualified with respect to severance clauses and fixed term contracts (see ''Miller v Convergys CMG Canada Limited Partnership'', 2013 BCSC 1589 (upheld on appeal); ''Rogers v Tourism British Columbia'', 2010 BCSC 1562). | |||
==== e) General Contract Construction Rules Apply ==== | |||
Other general rules regarding contracts may also invalidate the contract, such as duress, undue influence, and unconscionability, but these occur less frequently. | |||
Under certain circumstances, employers and employees cannot use the above rules to invalidate a contract for their own benefit. If a new contract is imposed in which all the benefit is to the employee, the employee cannot have the contract invalidated for lack of fresh consideration to the employer in order to avoid a severance provision or other provision of the contract. Additionally, the employer cannot back out of a contract that only gave benefits to the employee, due to lack of fresh consideration to the employer. | |||
=== 3. Without Cause v. Just Cause Dismissal === | |||
Employers can dismiss an employee in one of two ways: | |||
*A. Without cause, and on provision of reasonable notice; or | |||
*B. For Just Cause. | |||
Without cause dismissals and just cause dismissal are both express dismissal. An employer tells the employee they are being dismissed, generally by having a meeting and providing the employee with a letter of dismissal. | |||
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