Top 5 Wrongful Dismissal Questions

Posted by on Friday, November 7th, 2014
in Employment Agreements

This article is intended to provide some information and context in response to typical questions asked in employment termination situations. It is not a substitute for legal advice from a lawyer.


1. What is the difference between termination for “just cause” and termination “without cause”?
2. What is “just cause”?
3. What is the difference between “reasonable notice” and severance?
4. If the dismissal is without cause, what is the range of reasonable notice that the employee is entitled to receive?
5. What if I am a member of a union?


1. The main difference is that termination for just cause means that the employee is not entitled to any severance pay or reasonable notice of termination, but termination without cause triggers an employer’s obligation to pay severance pay or give reasonable notice. Termination for just cause may also prevent an employee from collecting Employment Insurance. There also may be some stigma attached to a termination for just cause that does not attach to a termination without cause.

2. “Just cause” has several related definitions, including a serious breach of one’s own employment contract, conduct seriously incompatible with one’s duties as an employee, serious breach of trust, and conduct that fundamentally strikes at the root of the employment contract. Just cause may include actions such as theft, lying, habitual absenteeism, insubordination, and significant performance issues of which the employee has been informed and given a reasonable opportunity to fix while knowing that their job is at risk. Just because just cause is alleged by an employer does not make it true; it may have to be proven in court especially if there is serious disagreement about the employee’s conduct or the circumstances.

3. Reasonable notice is defined as the amount of advance notice that an employee is entitled to receive prior to termination of their employment. The theoretical justification is so that the employee is given an objectively “fair” amount of time to find comparable replacement employment that he or she has earned or is otherwise entitled to in all the circumstances. “Severance”, the shortened version of the term “severance in lieu of reasonable notice”, is the provision of reasonable notice in the form of additional pay post-termination to compensate the employee for lack of advance notice. Reasonable notice may be provided in the form of actual advance notification, severance in lieu of reasonable notice, or some combination of the two.

4. Reasonable notice can be pre-determined by one’s employment contract, or can be determined on the basis of reasonable precedents in similar situations decided by judges. There is also a minimum amount of reasonable notice set out in the Employment Standards Act, which is a bare minimum that any non-excluded employee in British Columbia is entitled to receive from their employer if terminated without cause. If there is no contractual provision specifying that only Employment Standards Act termination pay will be paid, an employee may be entitled to an additional amount of notice or severance in lieu of notice based on the well-established analysis given in legal precedents. In general, significant factors do include the length of service of the employee, the age of the employee, the position filled by the employee, and the employee’s objective ability to find comparable work. However, there are many factors that may be significant in determining how much notice a person is entitled to receive, and you ought to speak to a lawyer knowledgeable in employment law for a fuller discussion of these factors and how they apply to your particular situation.

5. While many of the principles of employment law are represented in collective bargaining agreements, disputes with the employer are handled under a grievance process, not in court. A union is authorized and obligated to represent its members in disputes with their employer. Typically, outside counsel is prevented from being directly involved in disputes and grievances instead of the union, even if the employee wishes, and is willing to pay for, counsel of their choice. If an employee has a dispute with their union over filing of grievances, continuation of grievance procedures, or similar matters, an employee could bring a Labour Relations Code complaint against their union under the “duty of fair representation” section.

By Mark W. Hundleby