Termination Under the BC ''Employment Standards Act'' (Script 280)

From Clicklaw Wikibooks

This script describes your rights under the BC Employment Standards Act (the Act) if your job ends, including when you quit, are fired, or laid off. The Act is available at www.bclaws.ca. Further, you may have other rights under your employment contract and they may be greater than your rights under the Act. Generally, your contractual rights cannot be less than the minimum protections under the Act. Some of your rights under the Act, such as the right to overtime pay, may not be available under your employment contract. Check script 241, called “If You're Fired - Wrongful Dismissal”. It explains that if you’re fired, you may be able to sue your employer in court for breach of contract. Doing so can be instead of, or, in some cases in addition to, seeking the minimum protections in the Act, though you cannot always pursue both and instead must choose one or the other. Choosing which is best in your circumstances can be complicated and you should get legal advice about your case before deciding what to do.

Time limit for filing a claim under the Act and for suing There is a short time limit to file a claim under the Act—just 6 months from when you were terminated. The time limit to sue is 2 years from when you were terminated.

Were you an employee? Were you in a union?

This script applies only to non-union employees—not to partners, contractors, or employees in unions. If you belong to a union, the collective agreement between the union and the employer has rules about terminating employees that are not dealt with in this script. If you’re a partner or contractor, your contract controls the situation. However, many people who are called contractors or partners are actually employees under the Act. The Act focuses on the real relationship between you and the person or organization you worked for, not on the nature of your job title. This means that if a person or organization directed and controlled your work, provided the tools and equipment you needed to do your work, and paid you a wage, you were likely an employee under the Act, even if you were called a partner or contractor.

Lastly, this script doesn’t apply to those who work for the federal government or in an industry regulated by the federal government, like banks and airlines—federal laws apply to them. This script instead deals with provincial law, which affects most workers in the province.

Did you quit?

If you quit your job, the Act doesn’t require you to give your employer any notice that you’re going to quit. However, your employment contract (which can be oral or written) may require you to do so. Rarely, employees whose jobs involve great responsibility must give notice and can be legally liable where they do not. However, these positions are uncommon and the circumstances are generally made known to the employee when they take the position. For most people, the amount of notice you should give depends on several things including the type of job, how long you have had the job, and the general labour market conditions. Even if you don’t have to give notice, it is usually a good idea to do so.

If you quit, your employer must pay you all wages and vacation pay owing within six days of your last workday.

Were you fired?

Employers can fire employees in several ways. Your employer may be explicit about the dismissal, including letting you know in a letter or email, or simply saying “you’re fired”. Or, your boss may fire you in more subtle ways, and the Act recognizes this. For example, you may have been demoted without your consent, your salary may have gone down, or your boss may have reduced your responsibilities and duties. Usually, if your employer makes any important change to your job without your consent, it may be a dismissal under Section 66 of the Act. If an employer fired you this way, the Employment Standards Branch (which enforces the Act) may find that you were fired—even if no one ever explicitly said “you’re fired” or something similar.

What happens if you are fired?

If you were fired for “just cause” —explained in the next section—the Act doesn’t require the employer to give you any notice that you are going to be fired, or to pay you anything following your dismissal. However, if you were fired without just cause, the Act requires that the employer either give you written notice that you’re going to be fired or pay you the wages you would have earned in the notice period. These wages are called compensation for length of service, and are sometimes known as termination pay or severance pay. An employer can give you an equivalent combination of notice and compensation, though some exceptions are described later in this script.

If you get written notice of termination, your job continues until the end of the notice period. During the notice period, the Act prevents your employer from changing your conditions of employment without your written consent.

If your employer gives you notice during your annual vacation, while you are on any type of leave, or during a strike or lockout, the notice is not legally valid. The employer must wait until you return to work before giving you written notice of termination.

What is “just cause”?

“Just cause” means that you did something seriously wrong, such as stealing from your employer or refusing to carry out a job duty. Your employer may have just cause to fire you if you:

  • use drugs or alcohol that interfere with your job performance
  • ignore a strict rule of “no alcohol during work hours”
  • intentionally disobey your boss
  • consistently refuse to follow a clearly defined chain of authority in a tightly-knit business
  • are disloyal to your employer or put yourself in a conflict of interest; for example, you set up a business to compete *directly with your employer
  • ignore a clear workplace policy, procedure, or rule
  • are dishonest about something important

There may also be other cases of just cause, and things aren't always as clear-cut as these examples. An employer does not have just cause to fire you if the employer is simply dissatisfied with your recent job performance. An employer may have to warn you before firing you. An employer may even have to offer you reasonable job training.

Some employers may try to avoid giving you notice or compensation by saying there is just cause to fire you, even if there wasn’t. If you are fired and the employer says there was just cause, look very carefully at the employer’s reasons for firing you to see if there really is just cause. For example, there’s no just cause if you are dismissed because your employer is losing money or is reorganized, or because your job becomes redundant or is eliminated by technological change. A personality conflict between you and your boss may not be just cause—it depends on the facts of the case. In all these cases, the employer must give you written notice or compensation.

If you were fired without just cause, the Act says you get written notice or compensation for length of service

How much written notice or compensation is required?

The Act sets the following minimum amounts for written notice of termination and compensation for length of service. An employer can give you notice or pay (compensation), or a combination of the two—as long as you get the proper amount in total. If you have been employed less than 3 months in a row, no notice or pay is required. But if you have been employed for at least:

  • 3 months in a row, you are entitled to least 1 week’s notice or pay
  • 12 months in a row, you are entitled to 2 weeks’ notice or pay
  • 3 years in a row, are entitled to an additional week’s notice or pay for each additional year of service, to a maximum of 8 weeks

If your employer chooses to give you pay instead of notice, the pay is to be based on your average weekly wages during your last 8 weeks of normal work.

If you are fired, your employer must pay all of your outstanding wages and vacation pay within 48 hours of firing you—no matter why you are fired.

If an employer fires you because of pregnancy, jury duty, or parental or family responsibility , the employer may have to pay you more money in compensation unless the employer can show that you were not fired for one of these reasons. In some cases you can be reinstated at your former job—usually, however, this is neither realistic for employers nor employees.

Exceptions: other times when notice and pay are not required

An employer can fire you without giving you any notice or pay if you:

  • could accept or reject any work the employer offered you
  • were hired for a specific period
  • were hired for specific work that would not last over 12 months
  • were laid off because of something unpredictable like a flood or fire
  • worked at a construction site for a construction firm
  • refused a reasonable offer of a comparable job with the employer

Exceptions: some people are not covered by the Act

The Act does not apply to people who are:

  • professionals such as doctors, lawyers, architects, accountants, and dentists
  • real estate agents
  • secondary school students in work-study programs
  • “sitters” (defined in the regulations as persons employed in a private residence solely to provide the service of attending to a child, disabled or other person, but not including a nurse, domestic, therapist, live-in home support *worker, or an employee of any of those persons)
  • in certain government incentive programs
  • in job creation programs under the Employment Insurance Program
  • primary or secondary school students working 15 hours or less a week as newspaper carriers
  • in industries regulated by the federal government such as banks and airlines

Other people not covered by parts of the Act that deal with termination are:

  • student nurses
  • teachers
  • voluntary and auxiliary fire fighters
  • fishers (this term is defined in the regulations)

Rules for layoffs

Temporary layoffs are considered termination and require notice or compensation unless the employee consents to the layoff, or if there is an implied or explicit term in the contract that allows the layoff. A temporary layoff includes cases where you earn less than 50% of your normal wages because your work hours are reduced. If a temporary layoff is allowed, it can last up to 13 weeks in any period of 20 weeks. After 13 weeks of layoff, the Act considers an employee to have been terminated at the time when the layoff began.

Rules if 50 or more employees are fired

If an employer fires 50 or more employees at a single location within a two-month period, special rules apply unless the terminations are part of a normal seasonal reduction in staff. Where the terminations are not part of a normal seasonal reduction, the employees are entitled to more notice or pay—between 8 and 16 weeks more—depending on the total number of employees who are terminated. In this situation, you should contact the Employment Standards Branch to obtain more information about your rights.

Summary and where to get more information

If you’re fired or lose your job in some other way and don’t get written notice or compensation for length of service, the Employment Standards Branch can help you recover compensation and any other unpaid wages owing to you. You can call the information line (1.800.663.3316) or go to the website (www.labour.gov.bc.ca/esb) to find out if you have a right to compensation, and if so, how much. (The Employment Standards Branch has facts sheets on termination, just cause, and many related topics.)

You will then probably have to ask for payment from your employer through a Self-Help Kit, though there are some exceptions to this. If your employer fails to pay after you have made a request, you can make a written complaint to the Employment Standards Branch online, in person, or by mail. There is a short time limit to do this: just 6 months from when you were terminated.

Also, you may be able to sue for breach of contract and potentially obtain more than the minimum you are entitled to under the Act. Check script 241, called “If You're Fired - Wrongful Dismissal” for more information on this process. The time limit to do this is 2 years from when you were terminated. You may need legal advice about whether to complain to the Employment Standards Branch or sue for breach of contract, or do both, though doing both may not be possible. It is therefore important that you get legal advice before accepting severance or a termination package from your employer.

If you think you were fired because of your age, gender, religion, or some other personal characteristic, you may have a separate claim under human rights law. For more information on human rights claims, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC or visit www.bchrt.bc.ca. Further, if you worked for the federal government or in an industry regulated by the federal government, including banks and airlines, you can contact the Canadian Human Rights Commission at 604.666.2251 in Vancouver and 1.800.999.6899 elsewhere in BC. See its website, at www.chrc-ccdp.ca, for more information. As well, check script 270, called “Protection against Job Discrimination” and script 236, called “Human Rights and Discrimination Protection”.

[updated April 2015]

The above was last reviewed for accuracy by Jack Montpellier.

© Copyright 2017, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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