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On the Job - Pushor Mitchell's Employment Group

Contractual severance

Generally, an employee who is terminated from his/her employment without cause must take reasonable steps to minimize the amount of loss suffered as a result of his dismissal. This is known as the duty to mitigate. This duty usually requires that an employee take reasonable steps to find another job after he’s been terminated by his employer. Recently, in Maxwell v. British Columbia, 2014 BCCA 339, our Court of Appeal confirmed an exception to this duty to mitigate exists where the contract between the employer and employee sets out the employer’s severance obligations where the employer is dismissed without cause.

In Maxwell, the employee was employed for many years pursuant to a written employment contract which provided that she was entitled to pay in lieu of notice depending on the duration of her employment to a maximum of 24 months. In 2012, her employer was dissolved and replaced by a new entity. The employee was offered employment with the new entity, but instead elected to treat her employment as terminated without cause and claim 24 months’ severance pursuant to her contract.

At trial, the court employee was awarded severance on that basis. The employer appealed and argued that the employee was obligated to mitigate her damages by accepting the position offered with the replacement employer. The employer’s appeal was dismissed. The Court of Appeal held that where a contract specifically provides the consequence of termination without cause, the employee is entitled to severance under the contract and would have no obligation to mitigate his damages, unless the contract provides otherwise.

This case is important from an employer’s perspective because it demonstrates that employers must clearly state whether an employee is required to mitigate his losses where the contract defines the employer’s severance obligations. This case is important from an employee’s perspective because it highlights that employees may which to negotiate out of mitigation clauses, particularly toward the end of their career.


Article written by Mark Danielson


Appeal a WorkSafeBC decision

As an employment lawyer, I have met with dozens of people who have suffered a workplace accident and are now fighting for their compensation benefits. Fortunately, there is an avenue for workers to contest unfair decisions from WorkSafeBC. The process is long and difficult, but in many circumstances workers are able to overturn the decision that denied them their benefits and obtain proper compensation. If you are a worker that has been denied WorkSafeBC benefits, here are five steps to have your appeal heard.


1.  Note your deadline for a response

The WorkSafeBC appeal process is always going to begin with a decision letter from a claims manager. This letter will normally cite WorkSafeBC policy and will state why the decision is being made. Normally, workers will have 90 days to request a review of a decision they disagree with.

If you have been denied WorkSafeBC benefits, note this date, circle it on your calendar and do whatever else you need to do to be reminded of it. Don’t let this date pass without taking action! In deciding whether or not to accept your request for review, the first thing that a reviewing officer will look at is whether or not this limitation period has been respected.


2.  Start gathering medical information

WorkSafeBC commonly denies claims for a “lack of objective medical evidence”. What this means is that it’s often not enough for a worker to simply tell the claims manager that they are in pain or that they can’t perform the functions of their job. There has to be medical documentation to support this.

With this in mind, start gathering medical information early. Ask your health care providers for support by having them prepare an opinion on your diagnosis, your progress and your prognosis. Ask your family physician to review the opinion of WorkSafeBC’s staff doctor and have them provide comments. If you need to consult a specialist, ask your doctor for a referral and let WorkSafeBC know.

Also don’t be afraid to ask for a copy of your medical charts from your care providers. You are entitled to these documents and they can contain crucial information which may not have been disclosed to WorkSafeBC.


3.  Get the help you need

Before you file your request for review, get help. The Workers’ Compensation Act and its supporting policies are very complex, and your appeal may deal with complicated questions of law. Fortunately, support can come from a number of sources, including your union, a workers’ adviser, a friend or family member, or a lawyer knowledgeable in workers’ compensation law. Whatever you decide, familiarize yourself with the process and make sure you are able to identify what legal test needs to be met.


4.  Request a Review

The first step in the formal appeal process is to request a review. When a request for a review is received, WorkSafeBC will assign the file to an in-house reviewing officer for reconsideration. This reviewing will provide a second look at the file to make sure that the original decision was appropriate. In conducting the review, the officer can consider written arguments and new evidence. I strongly encourage workers to provide thorough, well thought out arguments supported by evidence when requesting a review.


5.  File an Appeal with WCAT

If the worker is unsatisfied with the result of the review, they can then request an appeal to the Workers’ Compensation Appeals Tribunal (WCAT). WCAT hearings can be heard in person, and the worker may have an advocate to present evidence and arguments that support their claim. The employer may also be present at the hearing, although in reality they rarely participate.

The WCAT hearing is a relatively informal process, and often there will only be the worker, their representative and the WCAT chairperson together in a small boardroom. These hearings should be taken seriously, as they are often the best opportunity for the worker to tell their story in full and ask for the compensation they are looking for.

Article written by David M. Brown

Severance may depend on contract

Whether you are an employer in British Columbia or an employee, many of you are aware that the Employment Standards Act outlines, among other things, the severance obligations that employers have to meet in the event they decide to terminate an employee without cause.  It is also commonly known that the severance obligations set out in the Employment Standards Act are the minimum severance amounts that an employer must pay to an employee upon termination.  What is less commonly known, however, is unless an employer and employee expressly agree in an employment contract that the employee is only entitled to the minimum severance amounts, that employee's entitlement to severance will actually be determined based on common law principles (i.e. judge made law), rather than based on the amounts set out in the Employment Standards Act.  

Why is this distinction between common law severance and Employment Standards Act severance important to employers and employees?  The importance varies depending on whether your perspective is that of an employer or an employee.  The first reason the distinction is important is because severance determined in accordance with common law principles is generally more significant than the minimums under the Employment Standards Act.  Secondly, as an employer, knowing that you can limit severance pay-outs to the minimums set out in the Employment Standards Act means that you can minimize the cost of employee terminations, as long as you take the time to enter into appropriately worded employment contracts with your employees.  From an employee's perspective, on the other hand, it is important to understand that if you did not sign a written employment contract that expressly restricts your severance entitlement to the minimums set out in the Employment Standards Act, you may then be entitled to increased severance in the event of termination, based on common law principles.  In the event your employment in terminated, you should consult with a lawyer in order to determine whether the severance that is being offered is appropriate in your particular circumstances.

Based on the fact that employee terminations can have significant financial consequences for both employers and employees, it is wise, whether you are an employer or employee, to obtain legal advice when dealing with the unfortunate and difficult circumstances surrounding an employee termination.


Article submitted by Greg Pratch

Think twice before you sue

Jian Ghomeshi is just one example of an employee who regrets taking action against his employer.

A recent case in BC involved a project manager who was terminated without just cause. He sued his employer wanting more severance pay than he was offered.

When he returned his cell phone after the termination the employer discovered that the former employee had texted a subordinate asking him to illicitly procure drugs for him. Even though this wasn’t known by the employer until after the termination, it was sufficient to justify cause for dismissal.

The result:

  1. The Employee is out of pocket whatever he paid his lawyer.
  2. He had to pay his Employer’s costs of $11,000.
  3. He “lost” whatever severance his employer offered him.
  4. It is now public record that he uses illicit drugs and involves subordinates in their purchase. That has to be career limiting!

The case can be found by clicking here.


Article submitted by Alfred C. Kempf

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About the Author

Pushor Mitchell's Employment Group assists clients in meeting the challenges of today's workplace, including: hiring, firing, management, discipline, contracts, human rights, employment standards, privacy and many other related issues. In their column, the authors' provide practical and interesting information on employment law topics for both employers and employees.

The authors: Alfred Kempf, Greg Pratch, Joni Metherell, Keri Grenier, Mark Baron, and Mark Danielson.

Have an employment law topic you want to see addressed? Comments or suggestions are always welcome.

Email: [email protected]

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The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet presents its columns "as is" and does not warrant the contents.

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