When is a Mariner Entitled to Severance Pay? 7 Key Questions to Answer

“Get Off My Ship, You’re Fired”: When is a Mariner Entitled to Severance Pay?

When is a mariner entitled to a notice of termination of their employment, or to be paid out for the time instead (called severance pay), is an unfortunately common question. In some cases, a mariner is left with no right to severance, but in many others, the mariner may overlook significant entitlements because they do not understand their rights.  There are, of course, always at least two sides to every story, so in the next Legal Net, I will outline the steps a prudent employer should take to terminate an undesirable employee, but for now, a mariner who faces the dismal view of being fired themselves should ask the following question.

Question 1: Am I Unionized?

Unionized employees’ rights to dispute termination or seek severance pay are limited by the terms of the collective bargaining agreements (“CBA”) between their unions and their employers.  These CBAs represent a trade-off where the employee assumes certain protections offered by agreement (such as wage rates, benefits, seniority entitlements, pension, a grievance process, etc.), in exchange for giving up other rights.  A unionized employee must dispute their termination through the grievance process under the CBA and cannot pursue severance pay against the employer in any of the processes discussed below.

Question 2: Am I an Employee, a Contractor, or a Dependent Contractor?

If you are not a unionized employee, the second question to ask yourself is: am I a true employee, a contractor, or a mix of these types of workers, someone called a dependent contractor?  This is important because only an employee and a dependent contractor are entitled to severance.  A true contractor has no entitlement to notice of their termination outside of what is stated in their contract, if anything.  An employee or a dependent contractor on the other hand, who are people defined by several different criteria but both of whom rely primarily on a single employer for work and tend to be under a greater degree of employer control than independent contractors, are entitled to reasonable notice of termination, if their contract is silent on this issue.

Question 3: Was I Fired for Just Cause?

Regardless of whether you are an employee, a contractor or a dependent contractor, if you are fired for cause you are not entitled to severance pay (unless a written contract says otherwise, which would be very unusual). The law says that a mariner can only be fired for just cause if their conduct fundamentally undermined the employment relationship.  The threshold for just cause is high.  Significant dishonesty, theft, and gross negligence are examples of such behavior.  Mere mistakes, irregular lateness, minor insubordination, and so on can only be just cause for termination if the employer provides written warnings in advance that such behavior will result in termination.  The employer bears the burden of proving they had just cause to fire an employee.

Question 4: Are my rights limited by an employment contract?

An employee and a dependent contractor can have their rights to reasonable notice of termination limited by terms of a written employment contract.  Such written agreements are relatively rare in the marine industries.  Unless the court finds the employer has conducted themselves in such an egregious way as to dis-entitle them from relying on the written agreement, terms in the contract that restrict the employee from claiming severance beyond the minimum discussed below are unenforceable and the mariner cannot claim more than what they provide.

Question 5: If there is no contract, or it is not enforceable, what law governs?

Where there is no employment contract, or it is not enforceable because of the employer’s action, then the employee may be entitled to severance. Entitlement to severance comes from two possible sources: (1) legislation such as the B.C. Employment Standards Act (ESA) (provincial law), and Canada Labour Code (CLC) (federal law), or (2) judge-made law, called common law.

The vast majority of marine jobs on the West Coast will be subject to the provisions of the B.C. Employment Standards Act (as opposed to the Canada Labour Code), regardless of the jobs involving navigation and shipping, because the work is related to local voyages as opposed to international or inter-provincial voyages.  This distinction is somewhat academic because the protections offered to employees under both the B.C. Employment Standards Act and the Canada Labour Code are largely similar.  Importantly, however, these laws only provide for a minimum severance entitlement, which is roughly equivalent to 1 week for every year of service up to a maximum of 8 weeks. Common law on the other can award one month per year of service depending on the factors discussed below.

Question 6: Should I choose Employment Standards/Labour Code or a Judge?

Awards for severance are typically much higher (often by a factor of 2 to 4 times) for long-term employees who seek a severance award in the courts under common law or judge-made law, as opposed to applying to agencies that administer the Employment Standards Act or Labour Code.  This is because judges are not limited by the maximums set by the ESA and CLC when making their awards, although they are limited to what other judges have awarded to terminated employees in similar circumstances.  The high-water mark for severance awarded by a judge is about 24 to 26 months of pay in lieu of notice.  A judge awards severance based on factors that relate to how difficult it will be for the employee to replace their position and income, such as: age, seniority, education, years of service, and the labour market.

People are often attracted to pursuing their severance claims under the simplified processes provided for by the ESA or CLC, but they often give up significant rewards by not pursuing their claims in front of a judge.  While some employees are concerned about the costs of hiring legal counsel to pursue their claims in front of a judge, employees should know that many lawyers pursue such claims on a contingency basis (no cure, no fee basis, like a ship’s salvage).

Question 7: The employer will not or cannot pay my severance, now what?

Mariners hold a uniquely powerful position in their claims for severance because severance claims give rise to a maritime lien.  A maritime lien is a special legal right that allows the mariners to claim a priority for his severance pay over other debts that the employer owes in respect of the vessel.  In other words, mariners owed severance pay can sue the employer and the vessel, arrest the vessel, require the owner to post bail (money) in the amount of the mariner’s severance claim before the vessel can be released from arrest, and where there are multiple creditors pursuing the employer, the maritime lien entitles the mariner to be paid in priority to other creditors including prior mortgage holders. This is an unusual and powerful right that terminated employees in most other (non-marine) occupations do not have.  It must be used carefully but should not be overlooked.

This article was originally published May 2015 in Western Mariner magazine.  Darren Williams is principal lawyer with League and Williams in Victoria B.C. and can be reached for question or comment locally 250-888-0002, or at info@leaguelaw.com.