If You Are Fired: Wrongful Dismissal

Employers can fire employees whenever they want if they give written notice or severance pay. There are some exceptions when employers don’t have to give notice or severance: for example, if an employer has just cause to fire an employee.

If you have been fired, or dismissed from your job, you may have several important questions such as:

• Can your employer fire you?
• Were you entitled to written notice that you were going to be dismissed?
• Can you get severance pay (or damages)?
• Can you sue for wrongful dismissal?

This script answers these and other questions. Script 280, called “Termination under the BC Employment Standards Act”, 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 pay and notice) 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 are not available under your employment contract. This can be a complicated area and you should get legal advice about your case.

Were you an employee? Were you in a union?

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?

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.

Were you laid off?

Your employer can lay you off temporarily if there is a work shortage and at least one of the following three situations exist:

a. you have a written employment contract that allows for a layoff.

c. you consent to the lay-off.

If neither (a) nor (b) applies 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 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.

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.

Were you fired for “just cause”?

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 written notice of the dismissal, or pay instead of notice. There are some exceptions described later in this script.

What is “just cause”?

“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.

Generally, 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.

If you are fired without just cause, are you supposed to get notice or severance pay?

Yes. The following sections explain the details.

How much notice?

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.

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.

How much severance pay?

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 damages for wrongful dismissal. It is intended to put you in the same position you would have been in if you had received proper notice. It differs from compensation for length of service (wages) under the Employment Standards Act. 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 the employer offers you your old job or a similar job

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.

A guide to how much notice and pay

The Employment Standards Act sets the following minimum amounts for notice (or pay instead of notice, called compensation for length of service) 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.

Can you sue for more? 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.

Time limit for suing and filing a claim under the Act

The time limit to sue is 2 years from when you were terminated. There is a shorter time limit to file a claim under the Act—just 6 months from when you were terminated.

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.

If you’re seeking $5,000 or less, you can seek help from the Civil Resolution Tribunal.

If you want only the minimum amounts in the Act, you can contact the []https://www.labour.gov.bc.ca/esb/contact/welcome.htm nearest office of the Employment Standards Branch] (phone 1.800.663.3316).

Be careful about accepting a severance or termination package from your employer without first getting legal advice. You may be giving up important benefits.

Exception: when notice and pay are not required

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

1. Get legal advice before accepting a demotion or transfer that you think is not fair.
2. 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.
3. 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.
4. 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. 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. For more information, check scripts 270 “Protection Against Job Discrimination” and 236 “Human Rights and Discrimination Protection”.
5. Talk to a lawyer immediately to learn your rights and how to protect yourself.

[updated October 2017]

The above was last reviewed for accuracy by Jennifer Hagen and edited by John Blois.

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