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Where We Are

700 - 1006 Beach Avenue
Vancouver, BC
Canada V6E 1T7
(604) 648-2966
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"Work is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

(TevlinGleadle was counsel for Mr. McKinley in the Supreme Court of Canada)

"... the fact that many individual employees may be unaware of their statutory and common law rights in the employment context is of fundamental importance.  ... the majority of unorganized employees would not even expect reasonable notice prior to dismissal and many would be surprised to learn they are not employed at the employer's discretion."

"When a contract is repudiated and the innocent party accepts the repudiation, which in my opinion is what happened here, the contract remains alive for the purpose of assessing the compensation to be paid. That compensation, that is to say, damages for the breach are what the innocent party would have received or earned depending on the nature of the contract had it been performed according to its terms."

"The public have an interest in every person's carrying on his trade freely: so has the individual. All interference with individual liberty of action in trading, and all restraints of trade of themselves, if there is nothing more, are contrary to public policy, and therefore void. That is the general rule. But there are exceptions: restraints of trade and interference with individual liberty of action may be justified by the special circumstances of a particular case."

"There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant."

"...many courts have sought to compensate the reliance and expectation interests of terminated employees by increasing the period of reasonable notice where the employer has induced the employee to "quit a secure, well-paying job . . . on the strength of promises of career advancement and greater responsibility, security and compensation with the new organization."

"... for most people, work is one of the defining features of their lives. Accordingly, any change in a person's employment status is bound to have far-reaching repercussions. ..., [w]hen this change is involuntary, the extent of our 'personal dislocation' is even greater.  The point at which the employment relationship ruptures is the time when the employee is most vulnerable and hence, most in need of protection. In recognition of this need, the law ought to encourage conduct that minimizes the damage and dislocation (both economic and personal) that result from dismissal."

  • McKinley v. Telus
  • Machtinger v. HOJ Industries
  • Nygard v. Robinson
  • Shafron v. KRG Brokers
  • Bardal v. Globe and Mail
  • Wallace (recruitment)
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Testimonials

PR Manager

"TevlinGleadle provided expert employment law counsel in an efficient, helpful manner. I received invaluable advice that I am optimistic will result in a favourable settlement. I wouldn't hesitate to recommend their services and will definitely contact them in the future if needed for wrongful dismissal advice."

Scoot

"I wouldn't hesitate to recommend TevlinGleadle for any legal issues related with employment law. When two co-workers and I were wrongfully dismissed, we consulted and retained TG. We received quick and courteous help and even received a group rate on some of the services we required. We all eventually settled out of court after we had finally received reasonable severance offers from our former employer. If not for TG, we would have only received about a quarter of the settlement we were entitled to."

Jim J.

"Me vs Finning:  Dan Gleadle has been a breath of fresh air for me going through this experience. When I was wrongfully dismissed I contacted 3 law firms including TevlinGleadle. Dan Gleadle made me feel at ease on how to proceed and what to expect. He has been very thorough throughout the process leaving no stone unturned. Even though his firm is small compared to their corporate counterparts, he has taken them on and won. The personal service I have received to date has been excellent. I would feel very confident in recommending TevlinGleadle to anyone that finds themself in need of employment lawyers."

Peter Gregg:

"I chose TevlinGleadle to represent our group because of their reputation as one of the top Employment Law firms in British Columbia. Murray and Dan have over 25 years combined experience in their fields. They were the right firm to present our employment and pension class action cases. We definitely benefited by utilization of TevlinGleadle's "Team" approach to resolving our list of issues in both classes. At all times our business was conducted in a very professional manner. I do not hesitate in recommending Murray, Dan, and their team."

Greg P.

"I was fortunate to be referred to TevlinGleadle upon the surprising termination of my employment. During a very stressful time, Dan Gleadle's systematic and balanced approach provided the clarity and options essential to move a personally demanding process forward.

Dan kept me well informed, never overpromising potential outcomes or responses. Dan Gleadle's effort and quick reaction times resulted in a court appearance four months post dismissal and a favourable judgement one an half months later."

Terry David Mulligan:

"Tenacious, thorough, humourous ... all round, a good experience through a tough situation. The mere mention of TevlinGleadle gets the right kind of respect and attention.

Huge bonus is sensational, freshly roasted (on the deck!) coffee!!"

We recommend Murray Tevlin and his firm all the time!

Dustin Trenton:

Not only does Martin Sheard have a wealth of experience to draw from, he has a natural ability to read people and assess the situation. Throughout the process, Martin was always confident and thorough and he took the time to explain what was happening and what I could expect. There is no doubt that I achieved a much better result due to Martin's efforts than I would have on my own.

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TevlinGleadle Employment Law Strategies

We provide a complete range of strategic wrongful dismissal labour and employment related negotiation and litigation services to employees and employers from our offices on False Creek in Vancouver, BC.  Murray Tevlin and Dan Gleadle both have over 30 years experience as lawyers representing employees and employers at all levels of trial and appeal courts in British Columbia - right up to the Supreme Court of Canada.  Working with an efficient team of specialist lawyers, staff and consultants, we offer our clients the full advantage of leading technology, and a project based selection of the appropriate professionals to achieve creative solutions to labour and employment matters - issues which are often sensitive and always important.  Blair Curtis, David McWhinnie, John Chesko, Martin Sheard and Chris Beneteau round out our team of lawyers and together, we bring the skills needed to resolve our client's concerns, with maximum efficiency.

We have extensive experience in strategic planning, achieving real results for our clients in all of BC's leading industries.  Our legal services include:

 

Wrongful Dismissal Executive Employment Contracts
Shareholder Disputes Planning & Negotiation
     Alternative Dispute Resolution & Mediation           Confidentiality & Non-Competition Issues     
Arbitration, Trials, Appeals and Injunctions Employment Class Actions
Merger & Acquisitions Consulting Pension Class Actions
Human Rights in the Workplace Labour and Employment Injunctions

Front Page News

  • David McWhinnie to speak at CBA Employment Law Subsection +

    David McWhinnie will co-present November 4, 2014 regarding employees who are entitled to a hearing prior to dismissal.

    Recent Wrongful Dismissal case law has referred to a separate cause of action for the failure to provide a hearing with either damages or reinstatement for breach available as remedies.

    Read More
  • Hospital-based doctors reach interim deal with Island Health +

    Hospital-based doctors reach interim deal with Island Health
    CINDY E. HARNETT / TIMES COLONIST
    JULY 4, 2014 09:56 PM

    VKA0723-EMERGENCY.jpg

              Photograph By Darren Stone, Victoria Times-Colonist


    Island Health and about 60 hospital-based doctors reached an interim deal Friday and hope to hammer out a long-term deal by October.

    "A four-month interim agreement between Island Health and the hospitalists in South Island has been reached," the health authority said in a statement.

    "This

    Read More
  • For Greater Victoria hospital doctors, there's no deal in sight +

    For Greater Victoria hospital doctors, there's no deal in sight
    CINDY E. HARNETT / TIMES COLONIST
    JULY 1, 2014 10:20 PM

    VKA surgery 0412.jpg

         Photograph By ADRIAN LAM, Times Colonist


    A contract between Island Health and its hospital-based doctors in Victoria has expired and talks have ended without a deal, leaving patients caught in the middle.

    Island Health said Tuesday patients would not suffer as a result of the contract's July 1 expiry.

    Island Health administrators were

    Read More
  • Victoria Hospitalist Doctors Say Intimidation Tactics Fail +

    Strategy to intimidate is a failure, Victoria's hospital doctors say

    Cindy E. Harnett  / Times Colonist 
    June 29, 2014 01:33 PM

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            Photograph By LYLE STAFFORD, Times Colonist

     Island Health has been in negotiations with Victoria Hospitalist Physicians Inc., which represents about 60 hospital-based doctors, or hospitalists, for two months.

    But as an Island Health-mandated deadline of July 1 approaches, no deal is in sight. 

    A move by Island Health to post the

    Read More
  • Murray Tevlin Presents at Lancaster House "Human Rights and Accommodation" Conference in Vancouver, BC +

    Pensions, Job Performance, Discrimination and Accommodation:  Coping with the challenges of an aging workforce

    9:00 AM - 10:15 AM (April 23 and 24, 2014)

    TOPICS

    The converging factors of an aging population, retirement and pension plan insecurity, and the end of mandatory retirement have resulted in an increased percentage of older workers in the workplace. With older workers staying in their jobs longer, and in many cases seeking to return to the workforce, what legal and

    Read More
  • TevlinGleadle Lawyers Presenting at Annual CLE Employment Law Conference +

    TevlinGleadle lawyers will figure prominently at the annual CLE Employment Law Conference scheduled for May 8th and 9th, 2014 in Vancouver, BC.  

    Murray Tevlin's presentation:

    Policy Issues in Employment Law

    • why is reasonable notice what it is? why is it calculated the way it is, instead of some other, better way?
    • what are the policy reasons behind a requirement that people retire (resign from partnerships) at age 65?
    • what should be the correlation of
  • Read More
  • Murray Tevlin in "Business in Vancouver" +

    What do I do If I Suspect an Employee is Stealing from the Company?

    Murray Tevlin provided insights as to this critical employee management question in the November, 2013 issue of Business in Vancouver.

    Business in Vancouver, November 2013

    Read More
  • Piron v. Dominion Masonry Media Coverage +

    TevlinGleadle's (Martin Sheard) recent win in the BC Court of Appeal in this interesting and important BC wrongful dismissal case has attracted significant media attention by legal commentators.

    The case has important implicatgions for employees, employers, and employment law practitioners in wrongful dismissal cases where issues arise about mitigation of damages, bonuses earned either during employment, or in an applicable notice period, as well as constructive dismissal.

    See for example:

    1. Stewart McKelvey Employment Law Blog
  • Read More
  • Media Coverage (Higginson v. Babine Forest Products Ltd.) Largest Canadian Wrongful Dismissal Punitive Damage Award +

    TevlinGleadle's (Chris Forguson) successful jury trial in Larry Higgingson v. Babine Forest Products Ltd. has garnered considerable media attention amongst legal and other commentators. The decision has implications for employment law (issues of punitive damages, wrongful dismissal, allegations of just cause, improperly advanced) but also broad implications beyond employment law where juries are asked to award punitive damages for inappropriate conduct on the part of a defendant.

    See for example:

    1. Canadian Lawyer & Law Times
  • Read More
  • Western Star Pension Class Action (Distribution Concluded) +

    We have received the final report from our actuaries, who have distributed all but a small amount of settlement funds and are unable to find any more beneficiaries in any practical way.  Therefore, we have today instructed Canadian Western Trust, the trustee, to pay all outstanding accounts and send a cheque for the balance to the United Way of the Central and Southern Okanagan.

    Read More
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Our Cases

  • Province Article - Former B.C. College of Teachers employee can keep $271,000 severance payment +

    Former B.C. College of Teachers employee can keep $271,000 severance payment   Appeal court says B.C. government assumed obligations of defunct body   BY KEITH FRASER, THE PROVINCE - SEPTEMBER 4, 2014         A former employee of the defunct B.C. College of Teachers will get to keep $271,000 in severance payments awarded to her by a judge who found she’d been fired without cause. Beverley Maxwell was the director of certification for the Read More
  • TevlinGleadle's Blair Curtis wins Maxwell Appeal +

    Blair Curtis of TevlinGleadle Employment Law successfully represented Ms. Beverley Maxwell last year in a summary trial hearing before Mr. Justice Skolrood of the British Columbia Supreme Court.  Justice Skolrood  granted judgment of substantial damages to Ms. Maxwell in her wrongful dismissal claim against the B.C. Government. The B.C. Government appealed the wrongful dismissal award, but the B.C. Court of Appeal has now dismissed the appeal, and affirmed the lower Court’s award to our client Read More
  • Mondaq publishes case comment on Kong Case where Baptist Church fails in its attempt to stop wrongful dismissal action by ex-Pastor Kong +

    Mondaq publishes McCarthy Tetreault case comment on BC Supreme Court Reasons for Judgement in Kong v Baptish Church where TevlinGleadle's David McWhinnie and Sean Tevlin successfully argued that a pastor should be able to proceed with a claim for wrongful dismissal damages against his former church. The article is available here. Read More
  • TevlinGleadle's David McWhinnie obtains court decision - Pastor can proceed with wrongful dismissal claim against former Church +

    This case concerns a claim for wrongful dismissal brought by a pastor against his former church. In his claim the pastor seeks, amongst other relief, compensation in lieu of reasonable notice after being terminated from his job. The defendant church applied to summarily dismiss the pastor’s claim on the basis that he should not be considered an employee at law. The defendant argued that both the religious nature of the pastor’s role and the internal Read More
  • Lawyers Weekly Article on dismissal of McCormick Appeal +

    The Supreme Court of Canada has rendered its decision in the case of McCormick v Fasken. cite 2014 SCC 39 The Court agreed with the appellant that the British Columbia Court of Appeal was incorrect in relying exclusively on partnership law in its analysis. It was determined that the test for who has the benefit of Human Rights protection is a substantive one, not one of form. However, the Court determined that, In the circumstances Read More
  • McCormick v. Fasken's Webcast Now Available for Viewing +

    The Supreme Court of Canada has now archived its webcast of the proceedings in this important appeal involving issues of cental importance to the scope of human rights legislation in Canada. The case involves age discrimination against a law partner in a large Canadian law firm, but the issues involve the right of persons to complain of discrimination, though they may not be in a traditional employment relationship (sometimes referred to as a "Master, Servant" Read More
  • Supreme Court of Canada publishes link to live Webcast of McCormick Appeal +

    The Supreme Court of Canada has published on its website key information about this upcoming case. Case Summary Human Rights — Employment relationship — Partnerships — Court of Appeal holding that a partnership should not be treated as the employer of a partner for purposes of human rights legislation — Whether a substantive analysis of the interpretation of “employment” for the purposes of human rights, in a modern context, should be precluded by a threshold test of technical legal Read More
  • TevlinGleadle's Blair Curtis Succeeds in Action against BC Government for Wrongful Dismissal Damages +

    Blair Curtis of Tevlin Gleadle successfully represented Ms. Beverley Maxwell in a summary trial hearing before Mr. Justice Skolrood of the British Columbia Supreme Court to decide her wrongful dismissal claim against the B.C. Government. The full text of the judgment is available here. Ms. Maxwell, who is 60 years old, had been a long term executive at the former B.C. College of Teachers. She had a written contract with the College that provided for Read More
  • Senior Sales Rep. v. Finning International Inc. +

    In this wrongful dismissal case, Blair Curtis and Dan Gleadle, of TevlinGleadle Employment Law Strategies, represented a senior sales representative specializing in managing large accounts for heavy mining equipment. Our client was 42 years of age, and had worked for Finning for 18 years, moving his way up through the ranks. At summary trial, the Court rejected the Defendant's submissions regarding a low-end notice period and awarded a base notice period of 17 months (reduced Read More
  • J.P. v. Dominion Masonry Ltd., 2013 BCCA 184 +

    Martin Sheard argued this important employment law matter both at trial and in the Court of Appeal J.P. v. Dominion Masonry Ltd., 2013 BCCA 184 (Groberman, MacKenzie, Harris JJ.A.).  He was successful in both courts. David McWhinnie of our office also appeared in the appeal. Opposing counsel was a partner at a national law firm. In the trial decision (also summarized on our website) the trial judge found that our client was constructively dismissed when his Read More
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Wrongful Dismissal - Frequently Asked Questions

Wrongful Dismissal FAQ

I have a written employment contract. Does it set out all my rights?

Probably not. Whenever an employment relationship exists between an employer and an employee, BC law provides that the relationship is governed by a contract. A contract is simply a bargain between two parties. Even if no part of the bargain is set down in writing, our law would find enforceable obligations on the part of both employer and employee. Many such obligations are "implied" merely by reason of the relationship. An example is the obligation on the part of the employer to give reasonable advance notice of termination if no "just cause" exists. This is a term that is implied into every unwritten employment agreement. Even if an employment agreement is written, the implied terms that our law prescribes remain, unless expressly superceded by written terms. Written terms of employment agreements would normally supercede implied terms, however. Even written terms of employment agreements are sometimes not enforceable. Employment in British Columbia is governed by certain provincial and federal statutes which prescribe minimum rights of employees. The BC Employment Standards Act, the BC Human Rights Code, and other similar statutes provide employees with certain "statutory rights" which protect employees, regardless of the provisions of written employment agreements.

I've been offered a severance package. Should I accept?

This is a question that cannot be answered without knowing a considerable amount more detail. Your rights depend on the terms of your employment contract, the employer's motivations in your termination, and other factors. Normally, any severance package should properly include an amount of money in a lump-sum to put you in the same position you would have been if you had been given reasonable working notice, rather than fired without notice. This depends of course of the terms of your specific agreement, and any implied terms which are not superceded by a written contract. The amount of the severance package should compensate you for all losses, which would include salary, amounts paid to replace benefits that were cancelled, often, an amount to compensate you for any bonus you would have earned during the notice period, an amount to compensate you for the loss of enhanced pension benefits from not being able to continue to work, losses from failure to have additional options vest, and a longer period to exercise options, and other similar losses. In addition, your severance package should include amounts due to you for your service up to the date of termination, including bonus for prior periods, commissions earned for sales made while working, an amount to compensate for vacation not taken, and the like.

The best advice is that you should be sure you fully understand your rights before accepting a severance package.

My boss is trying to make me quit.  Is this a "Constructive Dismissal"? What should I do?

Unfortunately, some employers, perhaps knowing their financial obligations to employees in the event of termination, attempt to make working conditions unbearable so employees will leave voluntarily. They refrain from firing an employee, to try to reduce notice period damages, because they do not believe they have just cause for dismissal, or are unsure about being able to prove just cause.   If an employee leaves voluntarily, he or she might be deemed to have quit and would not have a claim for wrongful dismissal damages. Employers might give unfair negative performance reviews, or demote an employee to a lesser job, or assign tasks to an employee that are plainly unreasonable. Some unscrupulous employers might try to minimize their financial costs by driving employees to resign.

This creates a real challenge for employees. Employees need to be very careful in these circumstances. Employees should be careful not to refuse "lawful orders" from employers, or risk being found to have been "insubordinate" or to otherwise have given cause for termination. The employer's conduct could be characterized as a "constructive dismissal" but maybe the requirements might be supportable or justifiable, in which case refusal might be seen as a "quit" or "voluntary resignation".

This is an area where employees really need to understand their legal rights before acting, or risk being found to have "quit".

I am working on a short term contract, but my contract has been renewed frequently. Does the written short term contract govern?

Short term employment contracts are often given full effect by courts. Normally, at the end of a short term employment contract, the parties need to agree to extend, or the agreement ends. Sometimes, employment continues after the expiry of such an agreement. If so, the employment would likely be regarded as employment for an indefinite period, requiring reasonable notice to lawfully terminate.

Also, if an employee is hired on a short term employment agreement, and the parties routinely extend the agreement repeatedly, a court might find that the contract is superceded by an overriding agreement requiring reasonable notice.

I want to quit and start up a competing business - can I safely do so? What restrictions am I under for post-employment competitive activity?

Our law favours free competition. Employees can, as a general rule, leave an employer and enter into competition. There are limits, though. The employee must be extremely careful not to take steps to start up the competing business while he or she remains employed. It is acceptable to plan for an prepare the new competitive business while still employed, but not to take any steps to implement the business. It is also not appropriate for any of the planning or preparation work to take place while the employee is supposed to be working for the employer. Activities should not occur on the employer's premises. Additional limits on competition may arise from special circumstances, such as an enforceable clause in the employment agreement prohibiting competition or solicitation for a period of time after the employee leaves the employer. Reasonably worded restrictions of this sort can effectively rule our competition in some cases. If employees are "key employees" or employees with "fiduciary duties" they may be further restricted from competition with their employers. If you are thinking of going into competition with your employer, you should be careful how you do so, and

I took this job based on false promises. Does that matter? Is there a material misrepresentation which gives me some rights or remedies?

It sometimes happens that employees are recruited to join an employer by false promises. For example, the employer might tell the employee that the job that is open is different than the actual opportunity, or that the pay or benefits are more generous than is actually the case. Then, the false representation is discovered by the employee – perhaps before the new job is commenced, sometimes afterwards. If the promise by the employer becomes a contractual obligation, because it is incorporated into the employment contract, the employee can sue for breach of contract. If successful, the employee would in these circumstances normally be compensated by an award of damages sufficient to put the employee in the same position he or she would have been in if the promise had been kept. This sort of action would not normally be possible during continued employment. In some cases, though, the false promises might not have contractual effect. This might occur, for example, where the employee was required to sign a written contract that did not contain the promise, or contained a termination clause to the employer's benefit. In these circumstances, the employee might wish to pursue a claim based on "misrepresentation". This is not a breach of contract claim but a tort claim. The theory of this claim is that the employee relied on the truth of the statement about what the future would hold, to his or her detriment. The employee might not have taken the job at all, but stayed in an existing job, or not moved to take the new job. The employee in these circumstances would normally be awarded damages to place them in the position they would have been if the false statement had not been made. Damages with this approach could quite possibly be more than would be available in a contract claim.

I've been off work for quite awhile due to an illness. Will I lose my job?  Is my employment contract "frustrated"?

Under the BC Human Rights Code, employers are prohibited from discriminating against a worker on certain prohibited grounds.  Prohibited grounds include physical or mental disability.  Thus, when employees are away from work due to a bona fide illness, the employer would be required to accommodate the disabled worker, to allow them to take time off, and then allow them to return to work, to their old job (normally) and in addition to facilitate a gradual return to work if practical.  The employer is often said to have a "duty to accommodate" up to a point at which the adjustments required for the returning worker would involve "undue hardship" for the employer.

I've been given working notice, do I have to carry on? Can I get a severance package?

Unless you have a contract that sets out the manner in which your employment may be terminated, there is an implied term that requires an employer to provide reasonable advance notice of a potential termination. This is what working notice actually is. You are given notice that your employment will end on a date in the future and you are required to continue to work until that date. The BC Employment Standards Act also provides for advance notice of termination except that the amount of notice required is typically less than the implied term requiring "reasonable" notice. In order to count as advance notice, an employer must provide unequivocal notice that your employment will end on a future date. Warnings like "things are not looking good, unless the situation improves, we'll have to let you go" typically don't count as advance notice. You need to know that your job will end and when it will end so you can find alternate employment. In situations where proper advance notice is given, you must continue to work if required. However, your employer must also keep the terms of your employment roughly the same. Substantial changes to your employment during a notice period could give rise to a constructive dismissal. This topic is covered elsewhere in these FAQs. One important point is that you must continue to work and should not sue your employer for wrongful dismissal even if you believe that the working notice period is too short. By continuing to work during this notice period, you will not be considered to have waived your right to sue for a longer notice period once the employment actually ends.

My employer wants to pay me salary continuation. Is this something I have to accept? Can I get a lump-sum amount?

Unless you have a contract permitting payment by salary continuance, the Courts generally require an employer to pay damages for wrongful dismissal in a lump sum. Sometimes, if the matter gets to Court before the end of a reasonable notice period and there is evidence suggesting the dismissed employee may get another job before the end of the notice period, the lump sum award could be reduced to reflect this contingency. In a leading case dealing with salary continuance versus lump sum awards (Tull v. Norske Skog, a copy is on our website under "Our Cases"), the trial judge stated that the Courts do not generally sanction a salary continuance arrangement unless the length of the notice period offered is on the high side of the range of reasonable notice. Employers that want to benefit from both a short notice period and salary continuance typically get neither unless it is specifically set out in a written agreement. The method of payment is frequently an issue that the parties can agree on in settling a case. Some severance offers include a term to the effect that salary continuance will continue for a number of months but if the employee gets another job during the salary continuance period, the employer will pay out a percentage of the remaining amount of salary continuance. Again, this is not a term that the Courts will imply into a contract and dismissed employees are not required to accept this method of payment. This arrangement may be a beneficial way to settle a lawsuit if the length of salary continuance and the percentage of payout are acceptable to both parties.

I've been dismissed. Am I entitled to my bonus? What about earned commissions?

Typically you are entitled to receive all the remuneration you would have received if you had been provided with reasonable notice of termination. This includes the type of bonus you could reasonably "count on" receiving. Where the bonus is set out in a formula, then so long as the company meets the requirements of a bonus payment according to the formula, you should be entitled to a bonus as a component of a claim for wrongful dismissal. Purely discretionary bonuses are the most difficult to claim however, where there has been a consistent bonus paid year after year, even discretionary bonuses can become part of a claim. Where a bonus plan specifically provides that no bonus is payable after notice of termination is provided or where a plan requires "active employment" at the time of payout, then the employer may have a defence to the bonus claim. The specific wording of these plans must be reviewed carefully on a case by case basis. See Wilson v. UBS Securities Canada in "Our Cases" on this website for an analysis of a discretionary bonus claim where we successfully recovered a discretionary bonus of $425,000 in a constructive dismissal case.

Similar considerations apply to commissions earned for service up to dismissal.

They are changing my job a lot? Do I have to go along with it?

Employers have a very wide latitude in assigning employees to particular tasks or areas of responsibility. Employees are thus ordinarily required to accept instructions by employers even involving substantial changes to areas of responsibility. That said, there is a limit beyond which an employer cannot go or risk being found to have breached an employment contract. If the revised job duties involve what a reasonable onlooker would regard as a substantial "demotion", the employee would ordinarily not be required to accept the demotion. If the employer insists on the demotion and the employee refuses, a court might well regard the demotion as a constructive dismissal, equivalent to an actual termination, and award compensatory damages. The difficulty is knowing where to draw the line. If the employee refuses to accept new responsibilities that were within the employer's rights, the employee would normally be seen as having quit or voluntarily resigned. The safest course in circumstances such as these is to obtain competent legal advice before deciding what to do.

What is a "constructive dismissal"?

Constructive Dismissal is a legal term used to describe a situation where an employer does not say "you are fired" but makes substantial unwanted changes to your employment that allow you to treat the changes as "constructively" terminating your employment. Because the employment relationship is often a fluid relationship, changing over time, you generally can't require your employer to keep your job exactly the same. Typically, over time, there will be changes such as increased pay, increased responsibility etc. In circumstances where an employer attempts to "force" a substantial change on an employee, the employee can refuse to continue to work in the changed circumstances, walk off the job, and claim for damages based on what the employer should have done which was to provide reasonable notice of termination of employment. The terms the Courts frequently use to describe the type of changes that would result in constructive dismissal are "fundamental" changes and changes "going to the root of the contract". Generally, constructive dismissal situations involve reduction in remuneration, position or status. Required relocation can also result in a constructive dismissal. The magnitude and type of change that will allow a person to walk off the job is very difficult to generalize. Typically, if you believe that your employer is asking you to do something you never agreed to do or to perform the same services for less than you are prepared to accept for your services, you should talk to an experienced employment lawyer. You may not have been fired, but the result may be the same.  Constructive dismissal cases are difficult because the risks are quite high. If you allege constructive dismissal and the Court does not agree that the changes were sufficient to qualify as a constructive dismissal, you will have lost your job and lost your case and be liable for some of your employer's legal costs.

Do I have to relocate to keep my job?  What do I have to do to mitigate my damages?

It depends. If your job is the type of job where relocation is expected or common, then you will likely have to accept reasonable relocations. If you have worked for a long time in one location with no indication that you might have to move, then you likely won't have to relocate. The distance of the proposed relocation is often a significant factor. For an analysis of this topic in one of our recent cases, see Wilson v. UBS Securities Canada on our website. In this case, the employer sought to close its Vancouver office and move the employees to San Francisco. The Court determined that the employee was not required to accept this relocation.

I am being treated differently at work, because of my age, sex, family status or disability. What can I do?

BC employees are protected from discrimination based on certain grounds prohibited by the BC Human Rights Code.  Workers in BC whose employment is governed by Federal laws have similar rights under the Canada Labour Code.  Prohibited grounds involve age, sex, family status, and disability.  This is not an exclusive list of prohibited grounds.  Discrimination means treatment that is different from other persons, because of the unique circumstances of the worker.  If this occurs, the employee would be able to advance a claim for a remedy under the Human Rights Code or the Canada Labour Code.  These complaints are normally advanced to the BC Human Rights Tribunal or the Canadian Human Rights Commission/Tribunal.  Importantly, in some cases, violations of a worker's fundamental human rights may give rise to a civil cause of action for wrongful dismissal, constructive dismissal, and in certain events aggravated and/or punitive damages.

I've been fired and I'm suing my employer for wrongful dismissal damages. What do I have to do in terms of finding a new job?

When you sue your ex-employers for wrongful dismissal damages – the court, in assessing those damages, will deduct from your award any amount you did earn or should have earned if you applied yourself to find a new job. This is referred to as the employee's duty to "mitigate" damages. However, in order for there to be any deduction from the total amount you would have been paid during a reasonable notice period, there must be evidence before the court which persuades the court that (1) the employee did not do everything he or she ought to have done to try to get other work and (2) that if those additional steps had been taken, earnings would have been generated to reduce the damages. In an wrongful dismissal action, the "onus" is on the employer to bring forward persuasive evidence of both factors.

If fired (ie. terminated without notice, or reasonable notice), the employee should do whatever is reasonable to try to find a suitable job. Normally, it would be reasonable to look for a similar job without taking a material steps down in either level of responsibility or pay and benefits. Courts would not normally require an employee to either look for or accept a significant step back in mitigation. Depending on the circumstances, mitigation might legitimately involve retraining or involve the employee pursuing a new career, or a new business. The perspective of reasonableness is – did the employee take action to do what was the right thing for him or her to try to get back to a similar sort of job or earning level.

In any wrongful dismissal claim, it is important that employees take steps to mitigate, and they must be able to prove their efforts (by keeping documents showing searches, interviews, applications etc. and perhaps a journal) in the proceedings when questioned by their employer's representative.

Am I entitled to be paid overtime pay during the notice period?

If your employment contract contains an obligation on the part of your employer to pay overtime pay for overtime work, and you are dismissed without proper notice, your damages would properly include an amount to compensate you for overtime you would have worked. To establish a contractual right to overtime pay, which would be enforceable in a court action, you must show an agreement between yourself and your employer that you would be paid for overtime at overtime rates. This could be an express agreement (either written or simply made by discussion) or it may be established by an actual practice that was followed prior to your dismissal. Also, you will need to prove that if the employer did give you proper notice, your overtime work would have continued.

Is money I recover in a wrongful dismissal claim taxable? What are the tax conseqences of a severance package?

Money earned by employees for work is taxable. Money recovered in a wrongful dismissal action in respect of work performed, or in compensation for "loss of an office" (read damages for wrongful dismissal") is taxable. Therefore, employers "withhold" a certain proportion of amounts due for wrongful dismissal damages, and remit that amount to the Canada Revenue Agency for the employee's tax account. The amount is a credit of tax paid by the employee for the relevant year. There are certain techniques available to employees to minimize tax payable at the terminatio of employment. Employees may be eligible to take advantage of a non-taxable retiring allowance for service before 1996, under a Canadian tax rule that applied until that time. This rule permits a certain amount of the retiring allowance attributable to years before 1996 to be paid into the employees' RRSP, free of tax. Some tax relief is also available in that legal expenses incurred to recover wrongful dismissal damages can be deducted from income, or paid directly by the employer, without withholding. Also, in some circumstances, it is possible to direct that some part of monies payable by way of wrongful dismissal damages be paid into the dismissed employee's RRSP in respect of available "RRSP room" that exists because historically, maximum contributions have not been made.

I'm turning 65, do I have to retire or can I work as long as I want to? Is retirement mandatory?

Until 2008, many employers, both in the private and public sectors, had mandatory retirement "policies" requiring employees to retire at age 65. Effective January 1, 2008 the BC legislature eliminated mandatory retirement when it enacted amendments to the Human Rights Code. The Code prohibits discrimination based on age. Before 2008, "age" was defined as younger than 65, so requiring persons older than age 65 to retire was permitted. Now, policies of this sort are contrary to the Code and ineffective.

The result is that employees now have no artificial end date for their employment. Typically, if there is no effective, pre-existing contractual term that provides that employment ends at a time certain, the only legal way for the employment to end is if the employee resigns voluntarily or if the employer provides reasonable working notice of termination. Employers will face real challenges in circumstances where they wish to terminate the employment of aging workers. If an employer gives working notice of termination in circumstances where any part of the motivation is found to be a desire to be rid of an older worker, there would be a risk of a finding of discrimination contrary to the Code. If an employee is dismissed and it is determined in a complaint to the Human Rights Tribunal that the discharge was discriminatory, the employer could be ordered to reinstate the employee, with up to full "back pay", and additional compensation for breach of the employee's basic human rights.

Employers have a duty to accommodate age related disabilities as well, unless it would be unduly difficult to do so. Employers can legitimately make distinctions based on the age of workers only if they can demonstrate a "bona fide occupational requirement" to do so. A bona fide occupational requirement is an employment standard that makes distinctions on certain grounds, including age, but that is allowed because of the nature of the employment. To demonstrate that the existence of a bona fide occupational requirement employer must establish that the employer adopted the requirement for a purpose rationally connected to the performance of the job, that the employer adopted the requirement in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; and that the requirement is reasonably necessary to the accomplishment of that legitimate work-related purpose. The bottom line is that normally there will be no effective bar to workers continuing to work past 65 unless they chose to resign.

Employers should be careful to avoid discriminatory conduct based on age.

I'm in a union and my employment is covered by a collective agreement. My employer is mistreating me, what do I do? Can a unionized worker sue for wrongful dismissal damages?

Because your employment is covered by a collective agreement, your only avenue to hold your employer to account is through your union. You should ask for the assistance of your union representative in addressing your concerns. The union should consider your circumstances and take appropriate action – if necessary commencing a grievance on your behalf. You cannot sue your employer in court for breach of an employment contract. If your union does not take sufficient steps on your behalf, you may have a claim against your union for failure to properly represent you.

What happens to my stock options if I'm fired?  Are stock option losses recoverable in a wrongful dismissal action?

The answer to this question depends on the particular details of your employment agreement, the Stock Option Plan under which your options were issued, and the terms of the Stock Option Grant. The overall governing principle is that after a wrongful termination, you have a claim for damages for breach of contract, and the court should grant damages, in a lump sum, to compensate you fully. Full compensation means the lump sum should be enough to put you in the same position you would have been if you had been given working notice. During a working notice period, you would continue to have options vest, and you would have had a longer period of time to exercise options.

Usually, but not always, Stock Option Plans state that employee stock options cease vesting on the date of actual (even wrongful dismissal) termination of employment, and the fired employee has a short period (usually 30 days) to exercise. The employee loses the ability to have additional options vest and to wait to exercise through a notice period. Damages should compensate for this.

Complicated mitigation issues arise as to whether the employee is obliged, in the 30 day "window", to purchase the shares in respect of the options which had vested by then.

The general approach to damages discussed above (availability of damages for losses during the notice period) would likely not be appropriate, if the stock option benefit enjoyed by the employee was very clearly stated by the employment agreement, the Stock Option Plan and the Grant to expire if an individual's employment ends even without notice and even if the termination was a wrongful dismissal. Clear language is required for this, however, and is rarely found.

I had a leased car or a car allowance, can I recover compensation for this in a wrongful dismissal claim?

In a wrongful dismissal claim, if successful, you will be awarded compensation in the form of lump sum damages. This would normally include not only amounts you would have received, during the notice period, for base salary or wages, but also an amount in lieu of benefits. For benefits, though, you would normally have to have taken action to replace the lost benefits. Expenses you incur to replace the lost benefit would normally be a proper claim. A car allowance could possibly be a benefit – an amount of money to compensate the employee for the cost of using his or her vehicle for work purposes. Insofar as the car allowance is only a reasonable estimate of the cost of using the car for business, it would not be a benefit, but if the amount was more than compensation for actual use, but an actual benefit, it would be recoverable. Actual evidence of costs is required. A similar approach is taken in the case of a leased car. If the employee has the use of the leased car for personal purposes and takes action to replace the benefit, the cost would normally be a proper head of damage.

Can I commence a legal action against my employer for wrongful dismissal while still working?  Must I wait to sue for damages?

British Columbia employees owes their employer a duty of good faith and loyalty. This duty exists regardless of the sort of job involved, and is an implied term that our law places into employment agreements. Several decisions have found that if an employee commences a legal action against his or her employee, the employee has breach the duty of good faith and loyalty, and the employer would then be able to terminate the employment lawfully. The employee would be seen as having given "just cause" for termination by his or her act of commencing legal proceedings.

However, there are limited circumstances where an employee could start a claim and not be seen as having breached a duty of good faith and loyalty. Examples might (depending on the circumstances) be where the employee's claim is for amounts due to the employee for wages, commissions or bonus. The action might be framed as a claim not for damages but for "directions" where the court is asked to interpret the parties respective legal rights and obligations.

The last word on this topic - think very carefully about suing your employer while you are still working, and get qualified legal advice.

If I'm dismissed, will I be compensated for pension losses in my wrongful dismissal claim?

If you are dismissed with proper reasonable notice you will work out the notice period and your pension will grow by reason of added contributions and length of service. When your job ends, you will not have a claim for damages, and in particular you will have no claim for pension damages. On the contrary, if you are terminated without reasonable notice, your wrongful dismissal damages will properly contain a component for your loss of pension. Because your job ends prematurely, your defined benefit pension on retirement (or the value of your investments in a defined contribution pension plan will be less than should have been the case. Your wrongful dismissal damage claim will properly include a lump sum amount to represent your lost pension benefit. The amount of this damage component, if properly advanced on your behalf, will include the amount required to put you in the same overall net position, as if you had worked through a reasonable notice period. In a defined benefit plan, this is roughly approximated by the employer's contributions during a reasonable notice period. In a defined benefit plan (ie you get so much a month on retirement) you would be undercompensated if you just got employer's contributions. In this situation you need to determine (often with an actuary's help) the actual amount of the loss. Sometimes, if you are wrongfully dismissed just before a key vesting period or milestone, your loss can be large, perhaps a substantial component of your overall claim.

My job is on shaky ground. I'm sick. What do I do if I'm worried I will lose my job if I take time off?

Technically, employers are prohibited from discriminating against an employee because he or she is sick.  If an employee is treated differently because he or she develops an illness, which might involve time off from work, the employer should allow the employee time off (not necessarily paid leave - entitlement to payment depends on the particular circumstances) to recover, and make their job available on a return of a graduated return to work.

If I sue for wrongful dismissal, will my employer have to pay my legal expenses?

A successful employee in a wrongful dismissal action normally recovers "costs".  Recoverable legal costs, however, are not the same as the actual legal expense an employee might have had to pay to his or her lawyer. Recoverable costs are normally considerably less than one half of an employee's actual legal expenses.  Thus, even a successful claimant would in most cases incur legal costs that are not recoverable.  BC costs rules are designed this way to encourage reasonable settlements.

What is "Just Cause" for Dismissal?

Employment agreements ususally contain a clause which permits the employer to dismiss an employee for "just cause".  The employment agreement would normally include a clause permitting just cause dismissal as an implied term, that is an unwritten term that the law says should be included in the mutual obligations of employee and employer.

Just Cause is a legal term that allows an employer to terminate without providing either reasonable notice or payment instead of notice (sometimes called payment in lieu of notice"). There is no clearly established method of determining what will constitute just cause. 

Courts focus closely on the particular alleged misconduct to decide if it is sufficient to dismiss an employee without reasonable notice.  The primary inquiry is whether the employee's misconduct caused a breakdown in the employment relationship, by either violating an essential condition of the employment contract, or destroying the employer's inherent faith in the employee. If the employer can clearly establish these circumstances, just cause will often be found.

 The court will consider whether the evidence supports a finding of misconduct, and whether summary dismissal is a proportionate penalty for the nature or degree of this misconduct.

Employee behaviour that prompts a consideration of just cause for dismissal is often considered within various categories: (i) poor performance, (ii) dishonesty and misconduct (iii) theft or fraud (iv) insubordination and other sometimes overlapping categories.

In many situations, courts like to ask whether an employer gave a warning before termination. Where there was no clear warning before the dismissal that such misconduct could result in termination, except in the most serious of cases, the employer will find it difficult to establish just cause.  Warnings are appropriate in situations where the employer's alleged just cause is based on poor job performance, breach of company policies, and minor examples of insubordination.  Warnings would not be required in more serious cases of just cause based on dishonesty, theft, or fraud.

The leading Canadian case on just cause dismissal is McKinley v. BC Tel.  TevlinGleadle's Murray Tevlin represented Mr. McKinley at all court levels.  McKinley involved an allegation of just cause because of alleged dishonesty. The court entered into a contextual analysis of the conduct of the plaintiff, and found that any established misconduct was not such as to destroy the employment relationship and permit just cause summary dismissal.

Where an employer attempts to establish just cause, in some cases, serious misconduct on the part of the employee which might have justified a just cause dismissal cannot be relied upon because the employer knew of the misconduct for a period of time and did nothign about it. This is the legal principle of condonation.

Should I sign anything if my employer asks?

Before employment begins, it is normal for employers to ask employees to sign documents which may describe job duties and other terms of employment.

During employment, employer may require employees to sign acknowledgements of new policies or benefits that are communicated, to ensure the employer has communicated these to employees properly.  In most cases that would be acceptable.

When employment has ended, or is about to end, the employer might ask an employee to sign a Release or other document that describes a settlement.  Normally, these should not be signed without the employee first having obtained legal advice.

What does it cost to hire a lawyer?

In British Columbia, wrongful dismissal lawyers normally provide legal services on the basis of a certain hourly rate per hour of services provided, plus out-of-pocket expenses (called disbursements). Lawyers' hourly rates usually depend on their experience and specialized qualifications. Specialists in a field of law often charge higher rates, hopefully reflecting their ability to add real value in a shorter period of time. Accounts are normally rendered on a periodic (often monthly) basis. Some lawyers (TevlinGleadle included) are prepared to represent clients on a "contingency fee" basis in suitable circumstances.

Sometimes, particularly with recently dismissed employees, clients find it difficult, or simply prefer not to fund legal costs on an hourly rate basis, and in the right situation, the lawyer and client are able to negotiate a retainer agreement where the lawyer would only be paid a fee for his or her services in the event the claim is successful and money is actually recovered for a client. Contingency fees are based on a percentage of the amount recovered. The percentages are determined by agreement, in writing, between the lawyer and client, and should reflect a reasoned estimate of the amount of work that will be involved and the expectations of the amount that might reasonably be recovered.

How do I get started with a legal claim for wrongful dismissal damages?

A legal claim is started when a formal document is filed with a court having jurisdidiction to hear employment claims.  For claims under $25,000, this is normally a local Small Claims Court, but for larger cases the court would the BC Supreme Court.  It is possible for employees to commence a legal claim without legal advice or assistance, especially in Small Claims Court, but normally claims are commenced in BC Supreme Court by lawyers on behalf of clients.  

Normally, terminated employees would be well served to obtain legal advice before starting a legal action.

How long will it take to resolve my employment law and wrongful dismissal claim?

This depends on the circumstances of your claim.  In the most common circumstance, where an employee is dismissed (aka fired, terminated) without any allegation that the employer had "just cause" to dismiss the employee, the time between dismissal and court judgment can be fairly short.  It can be as little as 4 months, and given competent counsel, and cooperative parties on all sides, the time should not be much more than this.  In cases where cause is alleged, or where there are complicated factual or legal issues requiring motions and preliminary appliciations, the time may be considerably longer.

If I sue my employer will it make it harder to find a new job?

When you apply for another job you may be asked how your last job ended.  You will have to deal with the circumstances of your most recent dismissal in some reasonable way.  It is unlikely that your job prospects will be worsened because you have commenced action for just compensation.  In our experience, employers understand the need for wrongful dismissal litigation in today's world.

EndFAQ