Corporate and Business Law

RUNNING HEAD: CORPORATE AND BUSINESS LAW
0
The consequences of wrongful
termination of the employee
February 11
2020

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TO: XYZ Sales Staff
FROM: Karen Mary
DATE: February 17, 2020
SUBJECT: Rights of terminated employee
The rights and laws related to the former employee termination. The apex court judgment,
basic rights and duties of the terminated employee all these aspects will be covered under this
discussion.
Key Issue of the case
According to the facts, Whether Dr Jeong-eun Ji was wrongfully terminated or not?
Rule
When the proprietor is, dismiss for legal reason, than the dismissal of the employee is valid.
Wrongful termination happens when the employer terminates the employee without specific
reason. Notably, the actual reason may be valid but if the amount of warning provided is
unsatisfactory, the termination can be measure as wrongful. A proprietor has the legal right to
dismiss the employee in two methods the first one is without telling the cause of the
termination and without payment of salary. The second one is termination without any
reasonable cause. Some allowance and benefits are given to the dismissed employee in order
to support them from changing one place to another work place. There are some complexity
may arise in wrongful termination regarding the age and years of working experience. There
are two types of termination one is wrongful and the other one is constructive dismissal.
Many people get confused regarding the two; in wrongful termination, the employee does not
get the money whereas in constructive dismissal the employee is given another job in that
company itself and if the previous contracts have been exhausted.
There are provisions for proprietor under central jurisdiction, if the individual work for
national or state banks, Air Company or national government than the provisions would fall
under the part III of the Canada Labour code. This includes all the proprietors, except the
managers, those who have completed 12 months with the same proprietor and who are not
come under the combined contract. The proprietor who found that they are wrongfully
terminate than they can ask the written reasonable notice from their employer. That should be

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answerable within 15 days after the request has been made. The affected individual can file
the case of wrongful dismissal within 90 days of termination.
In private sector the provision comes under the Employment Standards Act, this act allows
only limited money to the employers. The employees who are dismissing without the cause
may have definite added claims in legislation. They will be provided with the replacement
cost. Although these entitlements can be claimed only, when the employee take the employer
to the court.
Legal responsibility of employee to moderate damages, which means after the court claim the
individual should try to get a beneficial employment rather than waiting for the court reward.
A wrongful dismissal happen when an proprietor either i) Eliminate an proprietor without any
particular cause but fails to provide the proprietor with adequate notice of dismissal; or ii)
eliminates an proprietor for particular cause without giving any notice of dismissal in the
situation where the proprietor did not have a cause to dismiss the proprietor.
A wrongful dismissal is an infringement of contract. There are certain laws related to unjust
termination of the employee part iii of Canada lab our code provides a plan of action for
making complaints against a termination that a proprietor considers to be biased. Now the
question arises who is entitled to defense from unjust termination? In this particular, all those
managers’ proprietors who have completed at least 1 year of continuous employment with the
same employer and who is not covered by a collective contract. Now second question arises
who form a group dismissal of employment. In this particular, the dismissal of 50 or more
employees working at a single industrial establishment it could be either on the same date or
within any four-week period. There is several information that must be included in the notice
before terminating the proprietor, which are as follows-
a) The name of the proprietor
b) The industry or type of business of the proprietor
c) Location or setting up the affected proprietors work;
The CLC is an act that put in to governmental proprietor only terminated when i) the
proprietor has thing related to cause the termination. ii) The employer has been terminated
for discontinuance of the job function, which means if the employee is not performing well in
the work than the employer has the right to terminate the employer. This prevention does not

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apply to certain managers and administrators. Although employees have the option of taking
unjust, termination and pursuing a claim under judging provision of the CLC or commence a
wrongful termination. In the case Wallace v. United Grain Growers Ltd [1997] 3 SCR 701,
the court held that though retrieval for mental distress power not be accessible under distinct
heads of damages, the opportunity of retrieval remains. The arbitration process is very
different from a wrongful termination because the arbitration has the power to restore the
terminated employee into his or her previous position. The court of law held that Joss
Covenoho v. Pendylum Inc, 2016 ONSC 4969 that secure term agreement need flawless and
unmistakable conclusion provisions in order for employers not to be held legally responsible
for primary termination damages. In another case, IBM Canada Limited v. Waterman, 2013
SCC 70,[2013] 3 S.C.R. 985. The court held that pension profits are delayed reimbursement
and are a method of retirement funds. Retirement pension usually should not be deducted
from wrongful dismissal damages. Same decision took place in case (Potter v. New
Brunswick Legal aid services commission 2015 SCC 100) another case, McKinley v. BC Tel
[2001] 2 S.C.R. 161, 2001 SCC 38 the court held that when even deception is alleged, an
proprietor is static obligatory to establish that swift dismissal is suitable.
Application
In the present case, the wrongful dismissal has occurred Dr Jeong was wrongfully dismissed
because of the work she denied to do. according to the report of dr jeoung the risk of the
contamination was small but for public safety it was not acceptable BC Utility company
pressured the atomic energy of Canada limited and asked the doctor to revise her findings and
put the process in a more positive light (Sobeco & Gottlieb 2005). The financial benefits to
both the companies if the project were developed including the possibility of exporting
energy were in the ten millions of dollars and jeong was firm and refused to do that as jeong
had a reputation of being stubborn and arrogant and in the past, she had refused to follow
instructions. BCUC had never taken action before or warned her to change her behavior,
because they knew she was a brilliant research scientist and wanted to keep her. Therefore,
they reduced her salary from $150,000 to $100,000 with the possibility of making
performance bonuses that might or might not have made up the difference. Jeong was
incensed considering this a demotion and left BCUC. She obtained a similar position with
Alberta utility company in their research department doing the same kind of research. Jeong-
eun was incensed, considering this a demotion and left BCUC. As when she got the job in
BCUC she signed the contract which included the provision that if dr ji terminate the

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employment for any reason, she will not accept employment or work as a consultant in the
areas of research and development in which she was involved at BCUC, for a period of seven
years anywhere in America without the written permission of BCUC. Dr ji now wants to
claim an action for wrongful dismissal which is purely right. In this particular case, they
terminated the employee because she refused to do the work, which they wanted. When a
proprietor began the case against their former employees pursuing monetary damages
because the employee was unsuccessful in providing the proprietor with proper notice of
discharge. This is the situation, where the proprietor, have been constructively dismissed. In
the particular case, the relationship between the parties was damage and the company wants
to end the contract with P as P took the sick leaves but the commission terminated P for
unspecified time with salary and assigned his power and duty to another individual. P
professed that he was constructively terminate and began the case (Perritt 2019). The court
held that P should receive the pension perquisites and it should not be take away from his
destruction reward for falsely termination Potter v. New Brunswick Legal aid services
commission. The decision was referred from the case IBM Canada Limited v. Waterman.
The court held in the case Joss Covenoho v. Pendylum Inc, The proprietor was terminated
without any reasonable cause only three months after she joined the company because she
denied a criminal background check. The proprietor, have not been notified of the need for a
background check prior to joining the company. The court has to know that she have not
been wrongfully terminated because she had been presuming notice following to the terms of
her employment agreement. Reasonable notice of dismissal refers to the proprietor
commitment to issue the proprietor with adequate working notice of termination (Wright
2014). The proprietor needs to continue his and her work during the working notice period
under the terms and conditions. The termination of the proprietor is illegal; prejudicial that is
described in infringement of Human Rights Code. The wrongful termination is different
from an unjust termination in infringement of Canada Lab our law.
In the case McKinley v. BC Tel, held that the judges must observe that the petitioner behavior
was corrupt in deed and the other one was that the dishonesty was of degree that was
inappropriate with the employment association (Levitt 2003). The trial jury gave the
judgment that there was no specific proof upon which assert for punitive damages could be
contemptible and this matter was not portray in front of the jury. The judge gave the decision
in favour of the appellant and rewarded him, the entire damages like special general
exasperated damages and annuity offering. The appellant court hold the judges reward and

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commanded to do a fresh trial after finding that the trial jury made the unpredictable mistake
in ordering the judge that the petitioner deception would merit expiry only if it was grade that
was compatible with the proprietor association (Upex & Upex 2001). The petitioner appealed
to the court BC Tel re appealed saying that it perquisite to banish the petitioner’s wrongful
dismissal action rather than ordering the new trial. The court held that appeal should be
permit and cross appeal should be terminate.
When a proprietor is terminate from the employment and with the valid cause than the
termination was not mistaken and wrongful dismissal causes when without any specific
notice the proprietor is dismiss from the employment. The reason of dismissal might be right
but if the notice period is not sufficient than the termination is said to be wrongful.it is in the
rarest of rare cases that the termination of employment without notice is given. If that
happens than the legislation provide minimum amount owned by the employer to the
dismissed employee (Taylor & Emir, 2015). This notice may be said as working notice it
could be salary continuance for the rest of the life or lump sum amount in lieu of notice.
In the case, law Wallace v. United Grain Growers Ltd. The apex court of Canada was asked
to remedy the alleged bad faith by a proprietor, both for the fact of terminating the plaintiff
and for its manner of affecting the termination. This was the first time. When the apex court
has to decide whether an established proprietor agreement contains an implied term not to
terminate a proprietor, without a specific reason. There should be specific reason in order to
terminate the employment of the employee (Digest Canadian Case Law 2012).
Conclusion
On the basis of above analysis, it can be concluded that wrongful termination was done. It
was the right decision of claiming for wrongful termination by Jeong-eun as there was not
reasonable reason given by the company to terminate dr Ji.
Key issue of the case
Whether there was enforceability of restrictive covenants or not?
Rule
There are principles, which administer restrictive covenants in employment contract that
follows, as the covenant must be practical amongst the parties and with position to the
community interest. The other thing, which says the covenant, must have the stability and the
confidential information and trade secrets must not be disclose. In the case, Globex Foreign

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Exchange Corporation v. Kelcher, 2011 B.C.A. 240.A the court held that despite the
wrongful termination of an occupation agreement, non-competition contracts in that
convention are static enforceable.
The breach of contract by the proprietor qualify the proprietor to neglect restrictive covenant
which prohibit the employees right to compete with, or to request consumers from, his former
proprietor. When the employee deliberately wants to infringe the employment contract and
the employer accepts the rejection of the proposal then yes, wrongful dismissal relieve an
employee from restrictive covenants. In the case Shafron v. KRG Insurance Brokers
(Western) Inc 2009 SCC 6, [2009] 1 S.C.R. 157 the court held that a restrictive covenant is
prima facie unenforceable unless it is display to be sensible. If covenant is unclear, it is not
possible to determine that it is sensible. There are various reasons to uphold the restrictive
covenants. The first one says one party infringe the contract does not mean that the whole
contract becomes null. So many clauses in contracts are only intentional to come after one
party has already infringed the contract. The second one says infringement of contract gives
treatment to the innocent party but should not result in a complete confiscation of all rights
under the agreement.
Application
In the given case, Dr Jeong was dismissed from her research job. She was offered to the
position of assistant head. However, she refused it considering her demotion; she joined with
Alberta Utility Company in the research department. The employment contract should be
clear reasonable and enforceable restrictive covenants in the written form. The employee can
survive regardless of how termination occurred the employee should consider this. Restrictive
covenant comes under the clause 16, which must not be enforceable, as it does not make any
sense because one is bound not to work of his or her choice. This clause is not valid and
authentic as one has free right to work according to his choice irrespective of his termination
from the office.
In the case Globex Foreign Exchange Corporation v. Kelcher, the wrongful dismissal of the
proprietor contract by the employer give the restrictive covenants in the proprietor contract,
void against the proprietor.
In the case, Shafron v. KRG Insurance Brokers (Western) Inc, It was held by the court that S
had infringed the curator and impartial commitment. The judge refused the action saying that

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Metropolitan City of Vancouver in the constructive covenant is neither transparent, sure nor
sensible. He also has to know that S possessed no curator duty to covenant was mandatory
KRG Western. The court called off the decision. The court said that there was no curator duty
but constructive.
Conclusion
On the basis of above analysis, it can be concluded that restrictive covenants must not
enforceable, as it is the right of the employee to work of his own choice after the termination
also.
There should be defensive measures, which one should consider in fact, all the employers
must take notice of it always use printed employment. If the employer is terminating the
employee there must be reasonable notice, particular time must be given to the employee and
negotiable settlement must be consider.

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