If You Are Fired: Wrongful Dismissal: Difference between revisions

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{{REVIEWEDPLS | reviewer = [https://www.syerlaw.ca/ Ashley Syer], Syer Law|date= April 2020}} {{Dial-A-Law TOC|expanded = work}}
You’ve been let go from a job. You may be unsure where you stand, and what to do next. Learn the rules employers must follow in firing someone, and steps you can take to protect your rights.


{{Dial-A-Law TOC|expanded = employment}}
==What you should know==
If you have been fired, or dismissed from your job, you may have several important questions such as:
===Whether employment standards law applies to you===
*Can your employer fire you?
Several factors affect your rights if you’re fired. A key one is whether you’re covered by '''employment standards law'''.
*Were you entitled to advance notice that you were going to be dismissed?
*Can you get severance pay?
*Can you sue for wrongful dismissal?


This script answers these and other questions. You should also check script [[Termination Under the BC ''Employment Standards Act'' (Script 280)|280]], called “Termination under the BC ''Employment Standards Act''”. It explains how the ''Employment Standards Act'' (the Act) protects employees who lose their jobs. You may have two separate types of rights: first, your rights under the Act; second, your rights under your employment contract. Your contract rights may be greater than your rights under the Act. But your contract rights to certain things (such as severance pay and notice of dismissal) cannot be less than the minimum standards the Act sets. If they are, you are still entitled to the minimum protections of the Act. And you may have rights under the Act, such as the right to overtime pay, that may not be available under your employment contract. This can be a complicated area and you should get legal advice about your case. The Act is available at [http://www.bclaws.ca www.bclaws.ca].
A BC law, the ''Employment Standards Act'', sets minimum standards for employers in how they treat workers. This law applies to “employees” — which covers most but not all workers in the province.


==Were you an employee? Were you in a union?==
Need help figuring out if employment standards law applies to you? [https://dialalaw.peopleslawschool.ca/who-is-covered-bc-employment-standards/ See our information on who's covered].
The 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. If you’re a partner or contractor, your contract controls the situation. But many people called “contractors” or “partners” are actually employees under the law. The law focuses on the real relationship between you and the person or organization you worked for, not on what you were called. So, 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 probably an employee under the law, even if you were called a partner or contractor.


==Were you fired?==
===What your employment contract says===
The script applies only if you were fired (dismissed), not if you quit (voluntarily resigned). Employers can fire employees in several ways. Your boss may say, “you’re fired.” Or your boss may fire you in a much more subtle way and the law recognizes this. Sometimes, even if you quit, the law will say that the employer forced you to quit and actually fired you. This is called "constructive dismissal". To prove it, you would have to show that you had no reasonable choice, other than quitting. That’s hard to show. Constructive dismissal may apply if the employer has changed any important part of your job without your consent, such as your pay, your job duties, or your job title.
A second factor that comes into play is your '''employment contract'''. It may include terms that deal with how your employment can be ended. (Note there’s ''always'' an employment contract between a worker and an employer, even if nothing is in writing.)


==Were you laid off?==
Your contract rights may be greater than the protections in employment standards law. But, if employment standards law applies to you, your contract rights ''cannot be less'' than the minimum standards the law sets. If they are, you’re still entitled to the minimum protections of the law.
Your employer can lay you off temporarily if there is a work shortage and at least one of the following three situations exist:
*you have a written employment contract that allows for a layoff.
*you work in an industry where lay-offs are standard practice, such as the logging industry.
*you consent to the lay-off.


If neither (a) nor (b) apply to you, and your employer wants to lay you off, you should give the employer a note saying that you do not consent to a lay-off. If your employer still lays you off, it is the same as firing you without just cause (explained in the next section).
===If you’re fired and you’ve done nothing wrong===
Generally speaking, your employer can fire you whenever they want as long as they give you '''notice of termination'''.


If an employer lays you off properly (meaning one of items a, b, or c applies) and does not call you back to work within 13 weeks of your first day off work, it is the same as if the employer fired you without just cause, starting your first day off work.
There are two ways they can give you notice:<br>
# They can warn you in advance. This is called the '''notice period'''.
# They can let you go right away. But then they have to pay you the money you would have earned during the notice period. This money is called '''severance pay'''.


During a temporary layoff, you may look for another job, but you do not have to if you reasonably expect to be recalled. If your employer reduces your hours in a particular week so that you earn less than half of what you usually earn in a week, that is a week of layoff.
The notice your employer gives you must be '''reasonable''' (with one exception: if your employment contract spells out how much notice you get).


==Were you fired for “just cause”?==
For workers covered by employment standards law, there is a '''minimum notice''' your employer must give you depending on how long you’ve been in the job.
In most cases, employers can fire employees for “just cause” – without notice, or without pay instead of notice (the next paragraph explains what “just cause” is). Generally, employers can also fire employees without just cause. But in this case, the employer must give the employee notice of the dismissal, or pay instead of notice. There are some exceptions described later in this script.


==What is “just cause”?==
What is “reasonable” and what are the minimums? See our guidance on [https://dialalaw.peopleslawschool.ca/how-much-notice-employer-needs-to-give/ how much notice an employer needs to give].
“Just cause” means a good reason to fire you. It usually means that you did not perform your job duties or you did something seriously wrong, like stealing from your employer or unreasonably refusing to follow your supervisor’s directions. Your employer may have just cause to fire you if you:
*use drugs or alcohol that interfere with your job performance
*ignore a strict workplace rule
*intentionally disobey your boss
*consistently refuse to follow a clearly defined chain of authority
*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
*are incompetent; for example, if you got a job only because you said you could repair automatic transmissions, and it turns out you can't


These examples don’t cover all the possible cases of just cause.
===If you’re fired for just cause===
If you do something seriously wrong, an employer can fire you for '''just cause'''. In these situations, the employer ''doesn’t'' have to give you notice of termination.


As a general rule, an employer does not have just cause to fire you if the employer is simply dissatisfied with your job performance. An employer may have to warn you before firing you for just cause and may even have to offer you reasonable job training.
Just cause behaviour is where you do something '''seriously incompatible with the employment relationship continuing''' — to the point the employer cannot be expected to provide you with another chance.


==If you are fired without just cause, are you supposed to get notice or severance pay?==
For example, your employer might have just cause to fire you if you:<br>
Yes. The following sections explain the details.
* are dishonest about something important
* steal from your employer
* repeatedly breach a clear workplace policy or rule


==How much notice?==
In all but the most serious cases of misconduct, you’re entitled to receive warnings and opportunities to improve before being dismissed for just cause.
Your employment contract may say how much notice you get. If not, the contract has an implied term (oral or written) that the employer will give you reasonable notice of dismissal. Either way, an employer gives notice by telling you that your job will end on a particular date. Until that date, the employment contract continues – and so do your and your employer’s obligations under the contract.


How much notice is reasonable? It depends on several things including the type of job, how long you had it, your age, whether similar jobs are available, and your experience, training and qualifications. If you had a fixed-term employment contract – for example, a two-year term – the contract controls how much notice you get. In this case, the contract may say the notice period goes to the end of the two-year term. Or it could set a shorter notice period.
(Tip: if your employer fires you for just cause, they have to tell you what the reason is.)


You have a duty during the notice period to look for another comparable job. The employer may have a duty, during the notice period, to let you look for another job, so you won’t be unemployed when your current job ends.
We have more on what amounts to just cause. [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/if-you-are-fired See our in-depth info on this topic].


==How much severance pay?==
===If you’re fired for poor performance===
Employees who receive enough notice of their dismissal are not entitled to any pay instead of notice (sometimes called “severance pay”). However, employees who are fired without any, or enough, notice are entitled to severance pay. Severance pay is intended to put you in the same position you would have been in if you had received proper notice. Severance pay includes lost wages and vacation pay. It may also include other employment benefits (like bonuses) that would have been paid during the notice period. If you had a fixed-term employment contract, severance pay is based on the wages and benefits that you would have got until the end of the fixed term, unless there was an early termination clause. In that case, you would get severance pay only until the end of the earlier term. Again, you have a duty to look for other comparable work. If you find such work during the notice period, the employer may try to get some of the severance pay back from you – because you won’t be unemployed for the whole notice period that the severance pay covers.
If an employer is unhappy with your job performance, they can’t just fire you out of the blue — they must give you notice of termination.


==If the employer offers you your old job or a similar job==
''Unless'' they can show ''all'' of the following:<br>
Your employer may offer you your old job, or a similar job at the same pay. If you refuse that offer, you have to have a very good reason. If not, you may not get severance pay after the date you refuse.
* They established a reasonable standard of performance, and communicated it to you.
* They warned you that you were falling short, and gave you reasonable time and help to meet the standard.
* And you still failed to meet the standard.


==A guide to how much notice and pay==
If they can show all of that, an employer can let you go for poor performance and not give you notice.
The ''Employment Standards Act'' (the Act) sets the following minimum amounts for notice (or pay instead of notice) that must be given to an employee dismissed without just cause. If you have worked less than 3 months in a row, the Act does not require any notice or pay. But if you have worked for at least:
*3 months in a row, you get at least 1 week’s notice or pay
*12 months in a row, you get at least 2 weeks’ notice or pay
*3 years in a row, you get an additional week’s notice or pay for each additional year of service, to a maximum of 8 weeks


Under the Act, an employer can give you notice or pay, or a combination of the two, as long as you get the right amount in total.
===Things you can’t be fired for===
You can’t be fired for doing something you have the legal right to do. For example, your employer can’t fire you for raising a health or safety issue or refusing unsafe work.


==Can you sue for more?==
If you’re covered by employment standards law, you can’t be fired for doing something permitted under that law. For example, your employer can’t fire you for taking an annual vacation you’re entitled to. Or making a complaint to the government office that administers that law.
Yes, you can sue for breach of contract but there’s no guarantee you’ll win. The notice and pay amounts under the Act are minimums and you may be entitled to more under the law of contract. For example, if you worked six years, you are entitled to six weeks’ notice or pay under the Act, but you may be entitled to much more. Courts have awarded between 9 and 18 months of severance pay in many cases. Very senior and long-serving executives have received up to two years’ severance pay.


If you are fired and your employer gave you notice or severance pay, you should immediately talk to a lawyer to find out if you got all you are legally entitled to.
Your employer is breaking BC’s human rights law if they fire you because of:<br>
* your race, colour, ancestry, ethnic origin, citizenship, or where you were born
* your religious beliefs
* a physical or mental disability you have (including addiction)
* the fact you have children, plan to have children, or are pregnant
* your marital status
* your gender
* your sexual identity, gender identity, or gender expression


If you want only the minimum amounts in the Act, you can contact the nearest office of the Employment Standards Branch at [http://www.labour.gov.bc.ca/esb www.labour.gov.bc.ca/esb] and phone 1.800.663.3316. It’s also listed in the blue pages of the telephone book. But if you file a complaint under the Act and settle your entire claim for “wrongful dismissal”, you won’t be able to sue for breach of contract.
===You’re entitled to all outstanding wages and a ROE===
If you’re fired, your employer must pay all your outstanding wages and vacation pay — no matter why you are fired.


Be careful about accepting a severance or termination package from your employer without first getting legal advice. You may be giving up important benefits.
Your employer must also give you a '''record of employment'''. Your ROE is a form the employer prepares saying how long you worked for them and how much you earned. You’ll need this form to apply for employment insurance benefits.


==Exception: when notice and pay are not required==
==Work out the problem==
If you were hired just to do one thing and you’ve done it, or just for a certain time and the time has ended, then your employment contract has finished and the employer doesn’t have to give you notice or pay.


==If you think you have been wrongfully fired or dismissed==
===Step 1. Ask your employer why you've been fired===
#Get legal advice before accepting a demotion or transfer that you think is not fair.
#Get legal advice before accepting a payment from your employer as full and final settlement if you think you are entitled to more. If you settle your claim with your employer, a court may say you gave up your right to sue. You can take a reasonable time to think things over and get proper advice.
#Start looking for another job immediately. Even if you later sue your employer and win, you still have a duty to seek new and comparable employment right away. Keep an accurate record of your job-search, including copies of your application letters and e-mails, plus any replies you get.
#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. In that case, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. See the Tribunal’s website, at [http://www.bchrt.bc.ca www.bchrt.bc.ca], for more information. If you worked for the federal government or in an industry regulated by the federal government, like banks, airlines, railways, phone and cable companies, contact the Canadian Human Rights Commission at 1.888.214.1090. The Commission’s website is [http://www.chrc-ccdp.ca www.chrc-ccdp.ca]. For more information, check scripts [[Protection Against Job Discrimination (Script 270)|270]] “Protection Against Job Discrimination” and [[Human Rights and Discrimination Protection (Script 236)|236]] “Human Rights and Discrimination Protection”.
#Talk to a lawyer immediately to learn your rights and how to protect yourself.


Legally speaking, your employer doesn’t need to give you a reason for firing you — unless you’re fired for just cause. But you should ask anyway.


[updated June 2014]
If they do give you a reason, this can help you decide what to do next.


===Step 2. Apply for benefits===


----
Losing a job can mess up your finances in a hurry. It’s a good idea to apply for employment insurance benefits.
----


EI benefits are temporary payments made to people who lose their job through no fault of their own. The benefits are paid by the federal government.


There are time limits involved, so you should apply right away. [https://dialalaw.peopleslawschool.ca/employment-insurance-benefits/ See our guidance on applying for EI benefits].
===Step 3. Start looking for work===
You have a duty to seek new and comparable work, even during the notice period.
===Step 4. Gather relevant documents===
Collecting any documents related to your firing can help clarify your thinking. They also can serve as evidence, should you end up in a hearing or trial.
Pull out your employment contract (if you have a written one).
Collect any letters, memos, or emails that help show why you were fired. Locate any documents that show how you asserted your rights as a worker.
Gather any paperwork your employer gave you when you were let go, including your record of employment.
If you’re dealing with serious work-related stress, consider getting medical treatment. Medical records are a very strong form of evidence.
===Step 5. Consider your legal options===
If you think your employer breached your legal rights by firing you, you may have as many as three options, depending on your situation.
If you’re covered by BC employment standards law, you can '''make an employment standards complaint'''. We explain the steps involved. [https://dialalaw.peopleslawschool.ca/making-employment-standards-complaint/ See how to make an employment standards complaint].
If your employer fired you for a reason that violates your human rights, you can bring a '''human rights claim'''. You may be able to recover lost wages, or compensation for injury to your self-respect or dignity.
Or you can start a legal action against your employer. You can sue for '''wrongful dismissal'''. The amount you claim affects where you bring your lawsuit. If it’s for $5,000 or less, you can file online with the Civil Resolution Tribunal. This online tribunal can be a faster and cheaper option than court.
In deciding between these options, it’s valuable to get legal advice. Once starting on one of these paths, you may be legally prevented from using the others. Plus, there are time limits in play for each process.
Don’t have access to a lawyer? [https://dialalaw.peopleslawschool.ca/free-and-low-cost-legal-help/ There are options for free or low-cost legal advice].
===Go deeper===
Want more on these steps and your legal rights on getting fired? [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/if-you-are-fired See our in-depth coverage of this topic].
==Who can help==
===Helpful agencies===
Consider reaching out to these agencies for help if you lose your job.
:'''Employment Standards Branch'''
:The BC government office that deals with complaints against employers.
:Call 1-800-663-3316
:[https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards Visit website]
:'''Employment and Social Development Canada'''
:Deals with complaints against employers in federally-regulated industries.
:Call 1-800-641-4049
:[https://www.canada.ca/en/employment-social-development.html?utm_campaign=not-applicable&utm_medium=vanity-url&utm_source=canada-ca_esdc Visit website]
:'''BC Human Rights Tribunal'''
:Receives and resolves discrimination complaints under BC law.
:Call 1-888-440-8844
:[https://www.bchrt.bc.ca/ Visit website]
:'''WorkSafeBC'''
:Can help if you want to report an unsafe workplace
:Call 1-888-621-7233
:[https://www.worksafebc.com/en Visit website]
:'''Service Canada'''
:Can help with questions or concerns about employment insurance benefits.
:Call 1-800-206-7218
:[https://www.canada.ca/en/employment-social-development/corporate/contact.html Visit website]
===Legal advice===
:'''Lawyer Referral Service'''
:Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
:Call 1-800-663-1919
:[https://www.accessprobono.ca/our-programs/lawyer-referral-service Visit website]
:'''Access Pro Bono's Free Legal Advice'''
:Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income.
:Call 1-877-762-6664
:[https://www.accessprobono.ca/get-legal-help Visit website]
:'''People’s Law School'''
:See more options for free or low-cost legal help.
:[https://www.peopleslawschool.ca/options-legal-help/ Visit website]
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Latest revision as of 23:42, 16 November 2023

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Ashley Syer, Syer Law in April 2020.
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You’ve been let go from a job. You may be unsure where you stand, and what to do next. Learn the rules employers must follow in firing someone, and steps you can take to protect your rights.

What you should know

Whether employment standards law applies to you

Several factors affect your rights if you’re fired. A key one is whether you’re covered by employment standards law.

A BC law, the Employment Standards Act, sets minimum standards for employers in how they treat workers. This law applies to “employees” — which covers most but not all workers in the province.

Need help figuring out if employment standards law applies to you? See our information on who's covered.

What your employment contract says

A second factor that comes into play is your employment contract. It may include terms that deal with how your employment can be ended. (Note there’s always an employment contract between a worker and an employer, even if nothing is in writing.)

Your contract rights may be greater than the protections in employment standards law. But, if employment standards law applies to you, your contract rights cannot be less than the minimum standards the law sets. If they are, you’re still entitled to the minimum protections of the law.

If you’re fired and you’ve done nothing wrong

Generally speaking, your employer can fire you whenever they want as long as they give you notice of termination.

There are two ways they can give you notice:

  1. They can warn you in advance. This is called the notice period.
  2. They can let you go right away. But then they have to pay you the money you would have earned during the notice period. This money is called severance pay.

The notice your employer gives you must be reasonable (with one exception: if your employment contract spells out how much notice you get).

For workers covered by employment standards law, there is a minimum notice your employer must give you depending on how long you’ve been in the job.

What is “reasonable” and what are the minimums? See our guidance on how much notice an employer needs to give.

If you’re fired for just cause

If you do something seriously wrong, an employer can fire you for just cause. In these situations, the employer doesn’t have to give you notice of termination.

Just cause behaviour is where you do something seriously incompatible with the employment relationship continuing — to the point the employer cannot be expected to provide you with another chance.

For example, your employer might have just cause to fire you if you:

  • are dishonest about something important
  • steal from your employer
  • repeatedly breach a clear workplace policy or rule

In all but the most serious cases of misconduct, you’re entitled to receive warnings and opportunities to improve before being dismissed for just cause.

(Tip: if your employer fires you for just cause, they have to tell you what the reason is.)

We have more on what amounts to just cause. See our in-depth info on this topic.

If you’re fired for poor performance

If an employer is unhappy with your job performance, they can’t just fire you out of the blue — they must give you notice of termination.

Unless they can show all of the following:

  • They established a reasonable standard of performance, and communicated it to you.
  • They warned you that you were falling short, and gave you reasonable time and help to meet the standard.
  • And you still failed to meet the standard.

If they can show all of that, an employer can let you go for poor performance and not give you notice.

Things you can’t be fired for

You can’t be fired for doing something you have the legal right to do. For example, your employer can’t fire you for raising a health or safety issue or refusing unsafe work.

If you’re covered by employment standards law, you can’t be fired for doing something permitted under that law. For example, your employer can’t fire you for taking an annual vacation you’re entitled to. Or making a complaint to the government office that administers that law.

Your employer is breaking BC’s human rights law if they fire you because of:

  • your race, colour, ancestry, ethnic origin, citizenship, or where you were born
  • your religious beliefs
  • a physical or mental disability you have (including addiction)
  • the fact you have children, plan to have children, or are pregnant
  • your marital status
  • your gender
  • your sexual identity, gender identity, or gender expression

You’re entitled to all outstanding wages and a ROE

If you’re fired, your employer must pay all your outstanding wages and vacation pay — no matter why you are fired.

Your employer must also give you a record of employment. Your ROE is a form the employer prepares saying how long you worked for them and how much you earned. You’ll need this form to apply for employment insurance benefits.

Work out the problem

Step 1. Ask your employer why you've been fired

Legally speaking, your employer doesn’t need to give you a reason for firing you — unless you’re fired for just cause. But you should ask anyway.

If they do give you a reason, this can help you decide what to do next.

Step 2. Apply for benefits

Losing a job can mess up your finances in a hurry. It’s a good idea to apply for employment insurance benefits.

EI benefits are temporary payments made to people who lose their job through no fault of their own. The benefits are paid by the federal government.

There are time limits involved, so you should apply right away. See our guidance on applying for EI benefits.

Step 3. Start looking for work

You have a duty to seek new and comparable work, even during the notice period.

Step 4. Gather relevant documents

Collecting any documents related to your firing can help clarify your thinking. They also can serve as evidence, should you end up in a hearing or trial.

Pull out your employment contract (if you have a written one).

Collect any letters, memos, or emails that help show why you were fired. Locate any documents that show how you asserted your rights as a worker.

Gather any paperwork your employer gave you when you were let go, including your record of employment.

If you’re dealing with serious work-related stress, consider getting medical treatment. Medical records are a very strong form of evidence.

Step 5. Consider your legal options

If you think your employer breached your legal rights by firing you, you may have as many as three options, depending on your situation.

If you’re covered by BC employment standards law, you can make an employment standards complaint. We explain the steps involved. See how to make an employment standards complaint.

If your employer fired you for a reason that violates your human rights, you can bring a human rights claim. You may be able to recover lost wages, or compensation for injury to your self-respect or dignity.

Or you can start a legal action against your employer. You can sue for wrongful dismissal. The amount you claim affects where you bring your lawsuit. If it’s for $5,000 or less, you can file online with the Civil Resolution Tribunal. This online tribunal can be a faster and cheaper option than court.

In deciding between these options, it’s valuable to get legal advice. Once starting on one of these paths, you may be legally prevented from using the others. Plus, there are time limits in play for each process.

Don’t have access to a lawyer? There are options for free or low-cost legal advice.

Go deeper

Want more on these steps and your legal rights on getting fired? See our in-depth coverage of this topic.

Who can help

Helpful agencies

Consider reaching out to these agencies for help if you lose your job.

Employment Standards Branch
The BC government office that deals with complaints against employers.
Call 1-800-663-3316
Visit website
Employment and Social Development Canada
Deals with complaints against employers in federally-regulated industries.
Call 1-800-641-4049
Visit website
BC Human Rights Tribunal
Receives and resolves discrimination complaints under BC law.
Call 1-888-440-8844
Visit website
WorkSafeBC
Can help if you want to report an unsafe workplace
Call 1-888-621-7233
Visit website
Service Canada
Can help with questions or concerns about employment insurance benefits.
Call 1-800-206-7218
Visit website

Legal advice

Lawyer Referral Service
Helps you connect with a lawyer for a complimentary 15-minute consult to see if you want to hire them.
Call 1-800-663-1919
Visit website
Access Pro Bono's Free Legal Advice
Volunteer lawyers provide 30 minutes of free legal advice to people with low or modest income.
Call 1-877-762-6664
Visit website
People’s Law School
See more options for free or low-cost legal help.
Visit website
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