For Employees

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Employment Agreements for Employers

If you are an employer, you should always have professionally drafted, written employment agreements with your employees. At the Dyson Law Firm, we can help you draft employment contracts that protect your interests.

An employment agreement will usually set out the hours of work, work duties and any workplace rules. The employment contract will often contain a confidentiality clause where the employee specifically agrees to keep information obtained in your workplace confidential.  

It’s very important for your employment agreement to contain specified notice or pay in lieu of notice in the event of a termination. Without such a clause, you may be liable to give more (or pay more in lieu of notice) than the minimum notice set out in the British Columbia Employment Standards Act upon a termination. 

 Yes, that’s right. Contrary to popular belief, the Employment Standards Act notice provisions do not limit the amount of notice you must provide in the absence of an employment agreement! The common law (not legislated) provides for notice that is usually above and beyond what set out in the Employment Standards Act. 

That creates too much uncertainty for your business and makes planning for the future difficult without an employment agreement. If you are in such a situation, we can help you.

The context of when an employment contract is signed is extremely important. Clauses that seek to limit termination notice may not be enforceable without consideration given. An offer of employment is usually considered good consideration. 

That’s why we always recommend the signing of such employment agreements when possible before the start of the employment. If it’s not possible to have an employment agreement signed before the employee begins employment (such as in the case of a long term employee already working for you without an employment agreement), please immediately seek expert assistance from one of our lawyers.  

At the Dyson Law Firm, we have experience drafting and implementing employment agreements even in workplaces where they have not been previously used. If you don’t have employment agreements in place, please call us now.

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Is a Lay-Off Permissible in B.C?

During the COVID-19 crisis, many employers decided to “lay off” their employees with the idea of bringing them back at a later date.
In British Columbia, there is no provision absent an employment agreement or union collective agreement, that allows an employer to lay off employees. This means that an employee could in law treat the “lay off” as a dismissal and demand notice or pay in lieu of notice as under a “wrongful dismissal” claim. 

In practice, many employees are accepting the lay offs and rehiring in light of a bleak job market. If the employer and the employee agree on a lay off with rehiring, then the lay-off is permissible. After three months without a rehire, the lay-off is deemed to be a termination.

In addition, a lay off that is contemplated by an employment agreement or if the lay off is in a seasonal industry may certainly be permissible.

Furthermore, workers in unionized environments will usually have lay off provisions set out in the collective agreement. The lay off provision in a collective agreement will usually set out the appropriate notice periods that must be given. The lay off and the restoration of the union work force will usually be done based on seniority. 
We have experience at Dyson Law Corporation assisting employees and employers in non-union and union environments.

 Please call (604) 876 - 7000 for professional employment law assistance. 

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Frustration of the Employment Contract

Are you an employee who has been totally disabled from employment?

Do you have an employee who has been disabled for years?

It’s possible that an employment contract with an employee who has been disabled for a substantial length of time may have the employment contract ended on the basis “frustration of contract”. This means that ongoing performance of the employment contract may end.

However, it’s a very high test for the employer to allege that the contract has become impossible to continue. For one, the prospect of the employee returning to work must be very small. For another, the disability in question must not have been contemplated by the employer and employee at the start of the employment relationship. 

An employer must be very careful to terminate an employee who is disabled. For one, such a termination may breach the British Columbia Human Rights Code. It may also constitute a wrongful dismissal under the common law. Efforts to accommodate the employee’s disability must be made. 

If you are a long term employee on disability or an employer with a disabled employee, please consult with our firm to find out about your rights and responsibilities.

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Wrongful Dismisal - With Cause

A termination of employment in a non-union setting generally follows two forms: dismissal for cause or dismissal without cause.

Dismissal For Cause

A dismissal for cause generally would generally mean that the employer would not pay severance or provide notice to the employee. 

Dismissal for cause is a difficult bar for an employer to meet because the “cause” usually must be so serious that the employment relationship is completely broken. Alleged “incompetence” usually will not meet the test. However, courts have upheld dismissals for cause in cases of clear insubordination (a refusal to follow an employer’s direction), theft of the employer’s property, failure to attend work and harassment (especially sexual harassment).  

To make a dismissal for cause stick for insubordination, the employer’s direction must be clear and the refusal by the employee should be so obvious that the insubordination is tantamount to abandonment of employment. 

Progressive discipline may be required where there is ongoing or repetitive conduct that forms the basis for the dismissal for cause. 

If the dismissal for cause cannot be proven (which in many cases is a common outcome), the employer may be responsible for severance pay based on notice and/or damages. The amount could likely exceed the amounts set out in the Employment Standards Act. If a formal employment agreement was engaged, then the amount of severance may be limited. 

The manner of the dismissal is important. If the dismissal is carried out in a humiliating fashion, increased damages may be awarded against the employer.

In a unionized environment, a dismissal for cause will usually be the subject of a grievance and an arbitration as set out in the relevant collective agreement.

At Dyson Law, we have experience successfully representing employees and employers experiencing dismissal for cause claims in both union and non-union environments. We will use dispute resolution tools such as negotiation, mediation, arbitration and court trials acting in your best interests. Our lawyers use the latest research analysis tools to craft creative and effective solutions for your legal needs.

If you are an employee who has been fired for an alleged cause or you are an employer contemplating dismissing an employee for cause, please contact our firm for expert assistance.

Please call (604) 876 - 7000

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Wrongful Dismisal - Without Cause

Always remember there are two types of employment dismissals: dismissals for cause and dismissals without cause.

Dismissal Without Cause

In a British Columbia non-union workplace, in most cases, there is no obligation for an employer to keep an employee employed. An employee can terminate employment without any reason or any cause. 
However, an employer who terminates employment without cause must provide notice or in the absence of notice, severance pay based on the notice period. 

What is appropriate notice?

Many employees and employers incorrectly assume that the appropriate notice is exactly what is set out in the Employment Standards Act. That is often only a minimum amount of notice. Aside from the notice set out in the Employment Standards Act, there may be terms set out in written employment agreements or in what is called the “common law” that set out a longer period of notice than in the Employment Standards Act. 
The terms of the written employment agreement, if there is one, must be examined. If there is no written employment agreement, then one must look primarily at the length of service along with other factors such as the availability of similar employment, the age of the employee, the experience of the employee

What if insufficient or no notice is given?

If notice is not given, then employers may be liable to paying the dismissed employee the equivalent pay in lieu of notice.  
A humiliating manner of dismissal may attract damages of the employer’s conduct. For example, in one case our client, a senior executive, was called by the owner/employer a series of degrading and inappropriate names during the firing. Following a one day arbitration hearing, the arbitrator awarded double pay in lieu of the notice set out in the executive employment agreement. This is just one example of our successful work for our employment law clients. It’s also an example of where a degrading dismissal can greatly increase the amount of severance payable.

A group termination of 50 or more employees is subject to special rules which you should talk to us about.
If your employment has been terminated without cause or if you are planning on terminating the employment of your employees, please call us now for a consultation.


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