WITHOUT PREJUDICE
Date
BY MAIL
Other Party Full Name
Other Party Full Address
Dear [Other Party]:
Re: Severance under the Employment Standards Act
Paragraph 1:
Indicate that we represent the client.
Establish that the client was employed by the employer and when the client was terminated.
Paragraph 2:
Point to the relevant provisions in the Employment Standards Act (look at ss 62-71).
Indicate how much severance the employee is entitled to, based on the employee's length of service.
Indicate how much, if any, severance the employee has already received
Make it clear how much severance we are asking for.
If there is an issue regarding just cause or constructive dismissal, indicate our position.
Paragraph 3: Just Cause (Do not use unless instructed by supervising lawyer – normally we do not anticipate defences)
In McKinley v BC Tel, [2001] 2 SCR 161, the Supreme Court of Canada held that just cause will only arise when an employee acts in a way that “violates an essential condition of the employment contract, breaches the faith inherent to the work relationship, or is fundamentally or directly inconsistent with the employee's obligations to his or her employer.” Importantly, the employer bears the burden of establishing just cause. A single incident will not be enough, except in special circumstances.Rather, just cause only arises from conduct so severe that it is inconsistent with the continuation of the employment relationship because it constitutes a fundamental breach going to the root of the contract.
Analyze the client's facts in light of this law and argue why there was no just cause. You may also wish to examine relevant cases.
Depending on the facts, you may wish to discuss just cause sooner in the letter.
Paragraph 4: Constructive Dismissal (Do not use unless instructed by supervising lawyer – normally we do not anticipate defences)
Even if an employer has not expressly terminated an employee, there are some situations where the law will imply termination. This is called “constructive dismissal.” Constructive dismissal can occur when an employer fundamentally changes the employment contract. For example, if an employer significantly reduces the responsibilities, status or salary of the employee, this may result in constructive dismissal.
Analyze the client's facts. It may be useful to research similar cases.
Depending on the facts, you may wish to discuss constructive dismissal sooner in the letter.
Paragraph 5
If our client does not receive the money within 14 days, she will file a claim against you in the Small Claims Division of the BC Provincial Court without further notice.
Please direct any correspondence on this matter to:
Law Students' Legal Advice Program
Attn: YOUR NAME
1822 East Mall, Room 129
University of British Columbia
Vancouver, BC V6T 1Z1
If you have any questions or comments, please do not hesitate to contact the Law Students' Legal Advice Program office at 604-822-5791. When calling, inform that you wish to speak to YOUR NAME.
Please note we do not represent your legal interests. We strongly advise that you seek independent legal advice.
Sincerely,
Law Students’ Legal Advice Program
Per:
YOUR NAME
Law Student