This script describes your rights under the ''[http://www.bclaws.ca/Recon/document/ID/freeside/00_96113_01 BC Employment Standards Act]'' (the Act) if your job ends because you quit, or are fired, or are laid off.
If you quit a job voluntarily, this affects your legal rights to things like Employment Insurance benefits and compensation you are owed. Learn your rights if you quit your job.
Employers can fire employees whenever they want if they give written notice or compensation. There are some exceptions when employers don’t have to give notice or compensation: for example, if an employer has just cause to fire an employee.
==Understand your legal rights==
Script [[If You're Fired - Wrongful Dismissal (Script 241)|241]], called “If You’re Fired—Wrongful Dismissal” explains that if you’re fired, you may be able to sue your employer for damages (severance pay) for breach of contract, in addition to seeking the minimum protection under the Act. You may have rights under your employment contract or at common law greater than your rights under the Act. Deciding whether to sue can be complicated and you should get legal advice before deciding.
===Your rights depend on the type of worker you are===
Your rights if you quit your job depend in part on the type of worker you are seen to be under the law.
=Does the Act apply?=
A BC law, the ''[http://canlii.ca/t/8405 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.
==Time limit for filing a claim under the Act and for suing==
For example, it doesn’t apply to workers in '''industries regulated by the federal government''', such as banks and airlines. Federal laws apply to them.
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 in court is 2 years from when you were terminated.
==Were you an employee?==
Nor does it apply to '''union workers'''. If you belong to a union, the collective agreement between your union and the employer governs your rights at work.
This script applies only to [http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/employee-or-independent-contractor employees]—not to partners or contractors (their contract covers them). But 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 your job title. 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 likely an employee under the Act, even if you were called a partner or contractor.
==Were you in a union?==
As well, this provincial law doesn’t apply to '''independent contractors'''. These are people who are self-employed, who run their own business. If you’re an independent contractor, your contracts with the people you work for control the situation.
This script applies only to non-union employees—not to [http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/collective-agreements-and-esa unionized employees]. The collective agreement between the union and the employer has rules on terminating employees and grievance procedures.
==Did BC law apply to you?==
===Giving your employer notice===
This script applies only to employees covered by provincial law, which is most workers in BC. It doesn’t apply to employees of the federal government or of an industry it regulates, like banks and airlines—federal laws apply to them.
If you quit your job, the ''[http://canlii.ca/t/8405 Employment Standards Act]'' does not require you to tell your employer ahead of time. However, your employment contract may require you to do so. (There’s always a contract between a worker and an employer. Even if nothing is in writing, an [https://www.peopleslawschool.ca/everyday-legal-problems/work/rights-work/your-employment-contract employment contract] still exists.)
=How did your job end?=
Workers with a lot of responsibility may have to give notice and can be legally liable if they do not. But these positions are uncommon and the circumstances are generally known to the worker when they take the position.
==Did you quit?==
Even if you don’t have to give notice, it is usually a good idea to do so. Letting your employer know in advance gives them time to find someone to replace you. The amount of notice you give depends on several factors, including the type of job, how long you have had the job, and the general market conditions. Two weeks’ notice is common.
If you quit, your employer must pay you all wages and vacation pay owing within six days of your last day of work.
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 with a lot of responsibility must give notice and can be legally liable if they do not. But 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.
Giving your employer plenty of notice is recommended if you want your employer to give a good reference for you when you apply for a new job.
==Were you fired?==
===If you give your employer notice===
Employers have the right to fire employees. They don’t need to have a reason to fire an employee. But the Act requires employers to give employees '''written notice''' that they’re being fired or to pay them wages instead of giving them notice. These wages are called '''compensation for length of service'''. An employer can give you an equivalent combination of notice and compensation. Some exceptions to the requirement to give notice are described later in this script.
If you do give notice, the employer may accept or refuse the notice.
If you get written notice of termination, your job continues until the end of the notice period. During the notice period, your employer can’t change your conditions of employment without your written consent.
If they accept your notice, you are not entitled to compensation for length of service. (See our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired, no. 241]], for the minimum standards for notice or compensation if the employer is the one ending the work relationship.)
If your employer gives you written notice during your annual vacation, while you are on a leave, or during a strike or lockout, the notice is not legally valid. Because you have the right to work during your notice period, the employer must wait until you return to work before giving you written notice of termination.
If the employer refuses the notice, or terminates you during the notice period, the employer must pay you compensation. They must pay you the lesser of the remaining amount of notice you have given, or the minimum notice period you are entitled to under the law (see our information on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired]] for details).
==Were you fired indirectly?==
===Your employer must pay any outstanding wages within six days===
Your employer may not directly fire you. Instead, it may do more subtle things. For example, it may demote you without your consent, or cut your salary. Or it may reduce your hours or your duties or fail to pay you. If your employer makes any important change to your job without your consent, it may still be a dismissal under Section 66 of the Act. If your employer treated you this way, the [http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets Employment Standards Branch] may find that you were fired—even if no one ever said, “you’re fired”.
Regardless of whether you notify your employer ahead of time that you’re quitting, they have '''six days''' from your last day of work to pay you all wages and pay owing. This includes any annual vacation pay, statutory holiday pay, and overtime either worked or in a time bank.
==Did your employer sells the business?==
===Your eligibility for Employment Insurance benefits===
If your employer sells the business, it can give you written notice of termination. Then, if you work for the new employer that bought the business, you start as a new employee. But if the seller does not give you written notice, and you work for the buyer, you have the same length of service as if the business had not been sold. If the buyer then wants to terminate your employment, it must give you written notice based on your total length of service with both employers, the seller and the buyer.
If you quit your job, you will usually not be eligible to receive Employment Insurance (EI) benefits. The exception to this rule is if you had '''no other reasonable choice''' except to leave your job. Some examples are:
*you experienced sexual or other harassment
*you experienced discrimination
*your working conditions were unsafe
*your employer was not paying you the wages that were legally owed to you
*your employer made major changes to your work duties
=The basic rule requiring notice or compensation if you are fired=
When you apply for EI, you will probably have to describe your situation and explain what steps you took to fix the problem before you quit. If you convince EI you had no other reasonable choice but to quit, you may be eligible to receive EI benefits. For more on eligibility for Employment Insurance benefits, visit [http://canada.ca/ei canada.ca/ei] or call 1-800-206-7218.
==How much written notice or compensation you are entitled to if you are fired==
===If you didn’t quit voluntarily, but were “constructively dismissed”===
The Act sets the minimum amounts of written notice and compensation you are entitled to if you are fired without just cause (explained below). 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. An employer does not need to give you a reason for terminating you. If you have been employed less than 3 months in a row, no notice or pay is required. After 3 months, you are entitled to the following notice or pay:
Sometimes a worker who quits their job doesn’t truly leave the job voluntarily. They may be reacting to a form of veiled dismissal. Instead of saying “you’re fired!”, an employer might do something more subtle that causes the worker to feel like they have no reasonable choice but to quit. It might be an unexpected demotion. Or a significant reduction in hours or pay.
*If you work 3 months in a row, you are entitled to least 1 week of notice or pay
*If you work 12 months in a row, you are entitled to 2 weeks’ notice or pay
*If you work 3 years in a row, you are entitled to 3 weeks’ pay, and to an additional week’s notice or pay for each additional year of service, to a maximum of 8 weeks
If your employer gives you pay instead of notice, the pay must be based on your average weekly wages during your last 8 weeks of normal work. Part-time employees are entitled to compensation based on the same formula. These are minimum amounts, and your employer cannot ask you to agree to less in a written contract of employment.
If your employer changes your work situation in a fundamental way, and you don’t accept that change, you may have the same legal rights as someone who is fired. What happened to you is the legal equivalent of being dismissed. The law calls it “'''constructive dismissal'''”. This applies when your employer does something that:
*changes a key aspect of your employment in a major way, '''and'''
*is not something you should have expected, '''and'''
*you don’t agree to or accept.
If you are fired, your employer must pay all your outstanding wages and vacation pay within 48 hours of firing you—no matter why you are fired.
If you’ve been constructively dismissed, you have the same rights as someone who was fired without cause. That includes the right to “notice” or “severance pay” from your employer. Severance pay is money you’re given in exchange for being let go without notice. See our guidance on [[If You're Fired - Wrongful Dismissal (Script 241)|if you are fired (no. 241)]] for details.
If an employer fires you because of pregnancy or parental leave, family responsibility, bereavement or compassionate care leave, reservists’ leave, or jury duty, or because you filed a complaint against your employer, the employer may have to pay you more money in compensation unless it can show that you were not fired for one of these reasons. In some cases, you can be reinstated in your former job (get your job back)—but usually, this is not realistic for employers or employees.
{| class="wikitable"
|align="left"|'''Tip'''
For more on constructive dismissal, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/if-your-employer-has-made-big-changes-your-job if your employer has made big changes to your job]. Get legal advice before accepting a demotion or transfer you think is not fair.
|}
===Looking for another job===
You can look for another job before you quit. If you don’t want your current employer to be contacted, indicate on your résumé and application that you are applying “in confidence”. This way you can still list your current job as part of your employment history.
=Exceptions to the rule that requires notice or compensation=
Before making a final decision, an employer may ask for a current job reference. You can give the name of a co-worker if you don’t want your supervisor or employer to know.
==Get help==
==Did your employer have “just cause” to fire you?==
===With more information===
[http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/just-cause Just cause] means that you did something seriously wrong, such as steal from your employer or refuse to perform a job duty. If your employer has just cause, it can fire you without notice or compensation. In that case, your employer should give you the reason they are firing you without notice or compensation. Your employer may have just cause to fire you if you:
The '''Employment Standards Branch''' administers the law in BC that sets minimum standards for workers.
*use drugs or alcohol that interfere with your job performance
:Toll-free: 1-800-663-3316
*ignore a strict rule of “no alcohol during work hours”
*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
There may be other cases of just cause: things aren't always as clear-cut as these examples. An employer does not have just cause to fire you if it is just dissatisfied with your recent job performance. An employer may have to warn you before firing you or offer you reasonable job training, unless it gives you notice or compensation. If an employer gives you disciplinary letters and asks you to sign them, you can ask why they want you to sign. It may be to acknowledge that you received them, not to say that you agree. Often, there will be a place for you to respond if you don’t agree with the discipline.
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 carefully at the employer’s reasons for firing you to see if there really is just cause. For example, if you are fired because your employer is losing money, going out of business, or reorganizing, or because your job becomes redundant or is eliminated by technological change, those things are not just cause. A personality conflict between you and your boss may not be just cause—it depends on the facts. In all these cases, the employer must give you written notice or compensation. If you think the employer does not have just cause, you should contact the [http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets/filing-a-complaint Employment Standards Branch].
==Other situations 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 and worked until the end of the 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
==Some people are not covered by the Act (so they don’t get notice or pay if fired)==
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)
=Special cases=
==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=
'''Employment Standards Branch'''—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 [http://www.labour.gov.bc.ca/esb 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 to learn if you have a right to notice or compensation, and if so, how much. (The Branch has [http://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/factsheets factsheets] 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.
'''Suing'''—you may be able to sue for breach of contract and get more than the minimum you are entitled to under the Act. Check script [[If You're Fired - Wrongful Dismissal (Script 241)|241]], called “If You’re Fired—Wrongful Dismissal” for more on this. The time limit to sue is 2 years from when you were terminated. You should get legal advice about whether to sue, and before you accept severance or a termination package from your employer.
If you’re seeking $5,000 or less, you can seek help from the [https://civilresolutionbc.ca/ Civil Resolution Tribunal].
'''Human rights'''—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 [http://www.bchrt.bc.ca/ BC Human Rights Tribunal] at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC.
'''Federal law'''—if you worked for the federal government or in an industry it regulates, including banks and airlines, you can contact the [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 604.666.2251 in Vancouver and 1.800.999.6899 elsewhere in BC.
Check script [[Protection Against Job Discrimination (Script 270)|270]], called “Protection against Job Discrimination”, script [[Human Rights and Discrimination Protection (Script 236)|236]], called “Human Rights and Discrimination Protection”, and script [[Applying for Employment Insurance Benefits (Script 282)|282]] on employment insurance.
Contact '''Employment and Social Development Canada''' if you work in a federally-regulated industry.
:Toll-free: 1-800-641-4049
:Web: [http://www.esdc.gc.ca/ esdc.gc.ca]
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[updated October 2017]
[updated October 2017]
'''The above was last edited by John Blois.'''
'''The above was last reviewed for legal accuracy by [https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards Jennifer Hagen], Employment Standards Branch.'''
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Revision as of 05:19, 23 February 2019
Dial-A-Law features free information on the law in British Columbia in over 130 topic areas. A service of People's Law School, Dial-A-Law is available on Clicklaw Wikibooks, its own website at dialalaw.ca, and on the telephone at 1-800-565-5297.
If you quit a job voluntarily, this affects your legal rights to things like Employment Insurance benefits and compensation you are owed. Learn your rights if you quit your job.
Your rights if you quit your job depend in part on the type of worker you are seen to be under the 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.
For example, it doesn’t apply to workers in industries regulated by the federal government, such as banks and airlines. Federal laws apply to them.
Nor does it apply to union workers. If you belong to a union, the collective agreement between your union and the employer governs your rights at work.
As well, this provincial law doesn’t apply to independent contractors. These are people who are self-employed, who run their own business. If you’re an independent contractor, your contracts with the people you work for control the situation.
Giving your employer notice
If you quit your job, the Employment Standards Act does not require you to tell your employer ahead of time. However, your employment contract may require you to do so. (There’s always a contract between a worker and an employer. Even if nothing is in writing, an employment contract still exists.)
Workers with a lot of responsibility may have to give notice and can be legally liable if they do not. But these positions are uncommon and the circumstances are generally known to the worker when they take the position.
Even if you don’t have to give notice, it is usually a good idea to do so. Letting your employer know in advance gives them time to find someone to replace you. The amount of notice you give depends on several factors, including the type of job, how long you have had the job, and the general market conditions. Two weeks’ notice is common.
Giving your employer plenty of notice is recommended if you want your employer to give a good reference for you when you apply for a new job.
If you give your employer notice
If you do give notice, the employer may accept or refuse the notice.
If they accept your notice, you are not entitled to compensation for length of service. (See our information on if you are fired, no. 241, for the minimum standards for notice or compensation if the employer is the one ending the work relationship.)
If the employer refuses the notice, or terminates you during the notice period, the employer must pay you compensation. They must pay you the lesser of the remaining amount of notice you have given, or the minimum notice period you are entitled to under the law (see our information on if you are fired for details).
Your employer must pay any outstanding wages within six days
Regardless of whether you notify your employer ahead of time that you’re quitting, they have six days from your last day of work to pay you all wages and pay owing. This includes any annual vacation pay, statutory holiday pay, and overtime either worked or in a time bank.
Your eligibility for Employment Insurance benefits
If you quit your job, you will usually not be eligible to receive Employment Insurance (EI) benefits. The exception to this rule is if you had no other reasonable choice except to leave your job. Some examples are:
you experienced sexual or other harassment
you experienced discrimination
your working conditions were unsafe
your employer was not paying you the wages that were legally owed to you
your employer made major changes to your work duties
When you apply for EI, you will probably have to describe your situation and explain what steps you took to fix the problem before you quit. If you convince EI you had no other reasonable choice but to quit, you may be eligible to receive EI benefits. For more on eligibility for Employment Insurance benefits, visit canada.ca/ei or call 1-800-206-7218.
If you didn’t quit voluntarily, but were “constructively dismissed”
Sometimes a worker who quits their job doesn’t truly leave the job voluntarily. They may be reacting to a form of veiled dismissal. Instead of saying “you’re fired!”, an employer might do something more subtle that causes the worker to feel like they have no reasonable choice but to quit. It might be an unexpected demotion. Or a significant reduction in hours or pay.
If your employer changes your work situation in a fundamental way, and you don’t accept that change, you may have the same legal rights as someone who is fired. What happened to you is the legal equivalent of being dismissed. The law calls it “constructive dismissal”. This applies when your employer does something that:
changes a key aspect of your employment in a major way, and
is not something you should have expected, and
you don’t agree to or accept.
If you’ve been constructively dismissed, you have the same rights as someone who was fired without cause. That includes the right to “notice” or “severance pay” from your employer. Severance pay is money you’re given in exchange for being let go without notice. See our guidance on if you are fired (no. 241) for details.
Tip
For more on constructive dismissal, see People’s Law School’s information on if your employer has made big changes to your job. Get legal advice before accepting a demotion or transfer you think is not fair.
Looking for another job
You can look for another job before you quit. If you don’t want your current employer to be contacted, indicate on your résumé and application that you are applying “in confidence”. This way you can still list your current job as part of your employment history.
Before making a final decision, an employer may ask for a current job reference. You can give the name of a co-worker if you don’t want your supervisor or employer to know.
Get help
With more information
The Employment Standards Branch administers the law in BC that sets minimum standards for workers.
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