You Are Fired: those three little words that no one wants to hear
Of all the frightening things that Donald Trump has said, perhaps the most fear-inducing is the phrase “you’re fired”. These words are very often equated with unemployment, anxiety, and financial stress. If you’ve recently been terminated or dismissed from your job, try not to panic. It is important to understand your legal rights.
First, take a look at your employment contract. If it contains express terms dealing with termination, then your employer must follow these terms. However, if a termination clause is invalid or there are no express terms, then the common law applies.
The basic principles of the common law in British Columbia are as follows:
- If you are dismissed without cause, you are entitled to reasonable notice or payment in lieu of reasonable notice.
- The reasonableness of the notice depends on factors such as: the character of the employment, the length of the service, the age of the employee, and the availability of similar employment.
- In general, 18 to 24 months is the upper limit for reasonable notice.
- You are entitled to any vacation pay accrued before the date of termination and may be entitled to vacation pay accruing during the notice period.
- You may be entitled to the increased value that would have accrued to your pension if reasonable notice had been provided.
- You have a duty to mitigate, meaning you must actively seek alternative employment and keep records of your progress.
The above principles were discussed in Liboiron v IBM Canada Ltd., 2015 BCSC 1523. In this case, a 56-year-old Technical Services Professional was terminated without cause after 32 years of service. His employer, IBM, initially offered him a settlement and asked him to sign a general release form. After he refused, IBM paid him 4 weeks’ severance (approximately $5000) and characterized his dismissal as “retirement”. Mr. Liboiron sought damages for wrongful termination. Ultimately, the court ruled in his favour and awarded him 20 months’ severance pay (approximately $112,000).
In reaching this conclusion, the court considered similar cases. The judge presumed that Mr. Liboiron would have worked until at least age 65, and noted that potential new employers would be less likely to hire him if they thought he had retired. Although he did not immediately seek new employment, the court found that he had satisfied his duty to mitigate. After a short period of readjusting and regrouping, Mr. Liboiron kept a detailed journal of his efforts to find a job.
Each case depends on its circumstances, but there are some great takeaways from this decision. Be aware that reasonable notice may differ from the statutory notice required by the Employment Standards Act, RSBC 1996, c 113. Even if your employer has offered you severance pay, you may be entitled to more. Talk to a lawyer about your options, especially if you think you have been wrongfully dismissed or treated unfairly. Contact BTM Lawyers for more information.