Difference between revisions of "If You Are Fired: Wrongful Dismissal"

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{{REVIEWEDPLS | reviewer = [https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards Jennifer Hagen], Employment Standards Branch|date= October 2017}} {{Dial-A-Law TOC|expanded = work}}
{{REVIEWEDPLS | reviewer = [https://www.syerlaw.ca/ Ashley Syer], Syer Law|date= April 2020}} {{Dial-A-Law TOC|expanded = work}}
Generally, your employer can '''fire''' you whenever they want. But they need to give you notice, or pay you instead. Among the exceptions: if they fire you for “just cause”.  
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.


==Understand your legal 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'''.


===Other laws apply if you quit or were laid off===
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.
This information applies if you were fired (dismissed) from your job, not if you quit (voluntarily resigned). If you quit, see our information on [[If You Quit Your Job (No. 280)|if you quit your job (no.  280)]]. If you’ve been temporarily let go from your work, see our information on [[Getting Temporarily Laid Off (No. 281)|getting temporarily laid off (no. 281)]].


===Your legal rights depend on the type of worker you are===
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].
Your rights when you lose a job depend in part on the type of worker you are seen to be under the law.  


====Rights under provincial law====
===What your employment contract says===
A BC law, the ''[http://canlii.ca/t/8405 Employment Standards Act]'', sets minimum standards for employers in letting workers go. This law applies to “employees” — which covers most but not all workers in the province.
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.)


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.
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.


Nor does it apply to '''union workers'''. If you belong to a union, the collective agreement between your union and the employer has rules about how workers can be let go.  
===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'''.


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.
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'''.


{| class="wikitable"
The notice your employer gives you must be '''reasonable''' (with one exception: if your employment contract spells out how much notice you get).
|align="left"|'''Tip'''
Many factors go in to deciding whether someone is an '''independent contractor''' or an “'''employee'''”. Calling a person an independent contractor does not decide the issue. Factors that come into play include who is directing the work, who has a chance of profit or risk of loss, who provides the tools needed to do the work, and whether there is an ongoing relationship.
|}


====Rights under your employment contract====
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.
Your employment contract gives you certain rights. (Note there’s '''always''' a contract between a worker and an employer, even if nothing is in writing.)


Your contract rights may be greater than your rights under the provincial employment law (if that law applies to you, that is). But your contract rights to certain things, such as pay and notice, cannot be '''less''' than the minimum standards the law sets. If they are, you are still entitled to the minimum protections of the provincial law. More on this shortly.  
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].


===You can be fired for “just cause”===
===If you’re fired for just cause===
Under the law, an employer has the right to fire a worker who does something seriously wrong. This is called being fired for “'''just cause'''”. If you are fired for just cause, the employer doesn’t have to give you notice of the dismissal (or pay instead of notice).
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.


====What is just cause?====
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.
“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:
For example, your employer might have just cause to fire you if you:<br>
*are dishonest about something important
* are dishonest about something important
*steal from your employer
* steal from your employer
*put yourself into a conflict of interest (for example, setting up a business to compete with your employer)
* repeatedly breach a clear workplace policy or rule
*use drugs or alcohol in a way that interferes with your job performance
*intentionally disobey your boss
*repeatedly breach a clear workplace policy or rule


====Unsatisfactory performance is not just cause====
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.
Generally, if the employer is simply dissatisfied with a worker’s job performance, that doesn’t constitute just cause. To let a worker go for poor performance, an employer must show they established a reasonable performance standard, communicated that to the worker, and offered the worker reasonable time and training to meet the standard.


====Look carefully to see if there is just cause====
(Tip: if your employer fires you for just cause, they have to tell you what the reason is.)
Some employers may try to avoid giving a worker notice of dismissal (or pay instead of notice) by saying there is just cause to fire them, even if there isn’t. If you are fired and the employer says there is 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 notice of your dismissal (or pay instead of notice). We explain the notice requirements shortly.


{| class="wikitable"
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].
|align="left"|'''Tip'''
If your employer fires you for just cause, they have to tell you what the reason is. For more on what amounts to just cause, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/if-you-are-fired if you are fired].
|}


===You can’t be fired for doing something you have the legal right to do===
===If you’re fired for poor performance===
Your employer can’t fire you for doing something that’s permitted under the ''[http://canlii.ca/t/8405 Employment Standards Act]''. For example, you can’t be fired for any of the following:
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.
*Taking pregnancy or parental leave, and returning to work at the end of your leave.
*Refusing to sign an agreement that will affect your rights (for example, an agreement about how you’ll be paid for overtime).
*Filing a complaint against your employer with the Employment Standards Branch (the government office that administers the Act).
*Taking an annual vacation if you’re entitled to it.


Nor can your employer fire you for raising safety issues or refusing unsafe work. If they do, you can file a claim with [https://www.worksafebc.com/en/claims Work Safe BC].  
''Unless'' they can show ''all'' of the following:<br>
* 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.


===You can’t be fired for a reason that violates your human rights===
If they can show all of that, an employer can let you go for poor performance and not give you notice.
Your employer is breaking [http://canlii.ca/t/843q 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 that you have (including addiction)
*the fact that you have children, plan to have children, or are pregnant
*your marital status (for example, married, divorced or single)
*your gender
*your sexual identity, gender identity, or gender expression


If you’re let go, and you believe it’s for one of these reasons, you can start a claim with the [http://www.bchrt.bc.ca/ BC Human Rights Tribunal]. Another option is to start a claim for wrongful dismissal. We explain these options in our information on [[Protection Against Job Discrimination (No. 270)|protection against job discrimination (no. 270)]].
===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 fired and you’ve done nothing wrong===
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 can fire you '''without''' having a reason. But they then need to give you '''notice of termination'''. There are two ways they can do this:
#They can warn you in advance they plan to let you go. This advance warning is called the “'''notice period'''”.
#They can let you go right away. But then they have to pay you out. That is, they have to give you the money you would have earned during the notice period. This money is called “'''severance pay'''”.


Under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-113/latest/rsbc-1996-c-113.html#sec63_smooth Employment Standards Act]'', there is a minimum notice (or pay) your employer must give you depending on how long you’ve been in the job. You may be entitled to more, as — unless you have an employment contract that says differently — the notice you get must be “reasonable”. We explain what this means shortly.
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


===The law sets out the minimum notice required===
===You’re entitled to all outstanding wages and a ROE===
The ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-113/latest/rsbc-1996-c-113.html#sec63_smooth Employment Standards Act]'' sets the minimum notice period (or severance pay) depending on how long you’ve been in the job:
If you’re fired, your employer must pay all your outstanding wages and vacation pay — no matter why you are fired.
*If you’ve worked for '''less than three months in a row''', your employer doesn’t need to give you any notice or severance pay.
*After working '''three months in a row''', you’re owed at least one week’s notice (or one week’s severance pay).
*After working '''12 months in a row''', you’re owed at least two weeks’ notice or pay.
*After working '''three years in a row''', you’re owed at least three weeks’ notice or pay.


'''Beyond three years''', the rule is: three weeks’ notice or pay plus a week for each additional year of service. The minimum notice period maxes out at '''eight weeks'''. So no matter how many more than eight years of service you’ve given your employer, the minimum required under the law is eight weeks’ worth of notice or pay.  
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.


{| class="wikitable"
==Work out the problem==
|align="left"|'''Tip'''
If you were fired without just cause, you may be entitled to more than the minimum notice periods described above. For example, if you worked six years, you are entitled a minimum of six weeks’ notice or pay. But if you bring a lawsuit against your employer for “wrongful dismissal”, a court may order your employer to pay you more.
|}


===You may be entitled to more than the legal minimum===
===Step 1. Ask your employer why you've been fired===
Your employment contract may say how much notice you get. Whatever your contract says, it can't be any less than the minimum notice required by law.


====The notice must be “reasonable”====
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 your contract doesn’t say anything about notice, the law implies a term that your employer give you '''reasonable notice''' of dismissal. How much notice is reasonable? It depends on several factors, including:
*how long you’ve been in the job
*your age
*the type of job
*and the availability of similar jobs when you’re dismissed


Past decisions of BC courts help shape what is considered reasonable notice. Courts have awarded notice periods between several months and 18 months in many cases. They have generally recognized an upper limit for the notice period of 24 months for very senior and long-serving executives.  
If they do give you a reason, this can help you decide what to do next.


{| class="wikitable"
===Step 2. Apply for benefits===
|align="left"|'''Tip'''
The notice periods under the ''[https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-113/latest/rsbc-1996-c-113.html#sec63_smooth Employment Standards Act]'' are the legal minimum. You may be entitled to more notice or severance pay. For more on the factors that go into deciding what is reasonable notice, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/how-much-notice-employer-needs-give-you how much notice an employer needs to give you].
|}
===Your employer might offer you severance pay===
Your employer can let you go right away, without providing notice, if they give you '''severance pay'''. This is money to compensate you for lost earnings during the notice period.


It should take into account all the compensation you’re losing, including wages, vacation pay, benefits, bonuses and other incentives.  
Losing a job can mess up your finances in a hurry. It’s a good idea to apply for employment insurance benefits.


If your employer gives you pay instead of notice, the pay must be based on your average weekly wages during your last eight weeks of normal work. Part-time workers are entitled to compensation based on the same formula.
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.


An employer can give you a combination of notice and severance pay, as long as you get the right amount in total.
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].


{| class="wikitable"
===Step 3. Start looking for work===
|align="left"|'''Tip'''
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.
|}


===Situations where your employer doesn't need to give you any notice===
You have a duty to seek new and comparable work, even during the notice period.
There are exceptions to these rules. As explained above, if you are fired for just cause, the employer doesn’t have to give you notice of the dismissal (or pay instead of notice).


Notice (or pay) is also not required if:
===Step 4. Gather relevant documents===
*you quit or retire
*you work on an on-call basis doing temporary assignments that you can accept or reject
*you’re employed for an agreed-upon length of time
*you’re hired for specific work to be completed in 12 months or less
*it’s impossible to perform your work because of some unforeseen event (other than bankruptcy)
*you work at a construction site, and your employer’s principal business is construction
*you refuse to accept another similar job
*you’re a teacher employed by a board of school trustees


===If you are fired indirectly===
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.
Under the [https://www.canlii.org/en/bc/laws/stat/rsbc-1996-c-113/latest/rsbc-1996-c-113.html#sec66_smooth law in BC], it’s possible to be fired indirectly. Instead of saying “you’re fired!”, an employer might do something more subtle that is effectively like firing you. It may be an unexpected demotion. Or it may be a significant reduction in your hours or your 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:
Pull out your employment contract (if you have a written one).
*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.  
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.


{| class="wikitable"
Gather any paperwork your employer gave you when you were let go, including your record of employment.
|align="left"|'''Tip'''
For more on constructive dismissal, and steps to take if you think you’ve been fired indirectly, 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].
|}


===During the notice period===
If you’re dealing with serious work-related stress, consider getting medical treatment. Medical records are a very strong form of evidence.
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. Your employer can’t change your conditions of work or your pay without your written consent.


You have a duty during the notice period to look for another job. You must make '''reasonable efforts''' to seek comparable work.
===Step 5. Consider your legal options===


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


==Deal with the problem==
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].


===Step 1. Ask your employer why you’ve been fired===
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.
Legally speaking, your employer doesn’t need to give a reason for firing you — unless they are firing you for just cause. But you should ask anyway.


If they do give you a reason, this can help you decide what to do next. If you disagree with the reason, consider getting legal advice. If you don’t have a lawyer, there are options for [[Free and Low-Cost Legal Help (No. 430)|free or low-cost legal help]].
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.


{| class="wikitable"
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.
|align="left"|'''Tip'''
If your employer offers you severance pay and you think you’re entitled to more, consider getting legal advice. You can take a reasonable time to think things over and get advice. If you sign a settlement document, a court may say you gave up your right to sue.
|}


===Step 2. Start looking for work===
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].
Start looking for another job right away. You have a duty to seek new and comparable work, even during the notice period.  


Keep detailed records of your job search, including copies of your application letters and emails, as well as any replies you get.
===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].


===Step 3. Consider your legal options===
==Who can help==
If you think your employer breached your legal rights by firing you, it’s a good idea to get legal advice. A lawyer with employment law experience will be able to advise you on your options to take action. Depending on the situation, you may have as many as three options.  
===Helpful agencies===
Consider reaching out to these agencies for help if you lose your job.


====Making a complaint to the Employment Standards Branch====
:'''Employment Standards Branch'''
If you think your employer has breached the ''[http://canlii.ca/t/8405 Employment Standards Act]'', you can make a complaint to the '''Employment Standards Branch'''. This is the government office that administers the Act.
: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]


To start the process, download the Branch’s [https://www2.gov.bc.ca/assets/gov/employment-business-and-economic-development/employment-standards-workplace-safety/employment-standards/self-help/self_help_kit.pdf self-help kit]. It contains a step-by-step guide on how to bring a claim against your employer. It includes a request for payment form together with a letter you submit to your employer.
:'''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]


If you aren’t able to solve the problem using the self-help kit, you can file a complaint with the Branch. You must file your complaint within '''six months''' of the day your employment ended. For more on the process, you can call the Branch toll-free at 1-800-663-3316, or visit [http://gov.bc.ca/employmentstandards  gov.bc.ca/employmentstandards].
:'''BC Human Rights Tribunal'''
:Receives and resolves discrimination complaints under BC law.
:Call 1-888-440-8844
:[https://www.bchrt.bc.ca/ Visit website]


====Filing a claim with the Human Rights Tribunal====
:'''WorkSafeBC'''
If your employer fired you for a reason that violates your human rights, you can file a claim with the [http://www.bchrt.bc.ca/ BC Human Rights Tribunal]. You may be able to recover any lost wages, or compensation for injury to your dignity or self-respect. See our information on [[Protection Against Job Discrimination (No. 270)|protection against job discrimination (no. 270)]].
:Can help if you want to report an unsafe workplace
:Call 1-888-621-7233
:[https://www.worksafebc.com/en Visit website]


====Starting legal action against your employer====
:'''Service Canada'''
If your employer clearly breached your rights by firing you, you may want to consider suing them for "'''wrongful dismissal'''".  
: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]


If your claim is for less than $35,000, you can sue in [http://www.smallclaimsbc.ca/ Small Claims Court]. If your claim is for less than $5,000, you can bring it to the [https://civilresolutionbc.ca/ Civil Resolution Tribunal]. This is an online tribunal that encourages a collaborative approach to resolving disputes.
===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]


If you do decide to sue, there are time limitations on filing lawsuits (usually '''two years''' from when you were fired).  
:'''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]


{| class="wikitable"
:'''People’s Law School'''
|align="left"|'''Tip'''
:See more options for free or low-cost legal help.
For step-by-step guidance on these options, see People’s Law School’s information on [https://www.peopleslawschool.ca/everyday-legal-problems/work/getting-fired-or-laid/how-much-notice-your-employer-needs-give-you if you are fired].
:[https://www.peopleslawschool.ca/options-legal-help/ Visit website]
|}
 
==Common questions==
 
===Under a fixed-term contract, how much notice am I entitled to?===
If you have a fixed-term employment contract — for example, a two-year term — the contract controls how much notice you get. The contract may say the notice period goes to the end of the term. Or it could set a shorter notice period. If the contract says nothing about notice of termination, and the employer lets you go, they must pay the balance of the wages and benefits owed for the remainder of the fixed term. (You have a duty to look for other comparable work during that period.)
 
Once your fixed-term contract is finished, your employer doesn’t have to give you notice or pay.
 
===My employer gave me notice while I was on vacation. Is that legal?===
No. If your employer gives you notice of termination during your annual vacation, while you are on a leave, or during a strike or lockout, the notice is not legally valid. Your employer must wait until you return to work before giving you notice of termination.
 
===My employer sold the business. What are my rights if the new owner fires me?===
If your employer sells the business, they 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 when they sell the business, if your employer 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, they must give you written notice based on your total length of service with both employers, the seller and the buyer.
 
===My company is firing 100 workers at the same time. What are my rights?===
If an employer fires 50 or more workers 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 workers are entitled to more lead-time than usual. The amount of notice required depends on the total number of workers who are being let go.
 
Your employer must give notice with the following lead-times:
*If 50 to 100 workers will be fired, at least eight weeks before the first worker is fired.
*If 101 to 300 workers will be fired, at least 12 weeks before the first worker is fired.
*If 301 or more workers will be fired, at least 16 weeks before the first worker is fired.
 
If your employer fails to give you notice as required, they must pay you instead. Or, they can choose to give you a combination of notice and pay.
 
===My employer offered my old job back. Do I have to take it?===
After letting you go, an employer might offer you your old job back, 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.
 
==Get help==
 
===If you are fired===
The '''Employment Standards Branch''' deals with complaints if you’ve been fired and didn’t get the amount of notice or severance pay you’re entitled to.
:Toll-free: 1-800-663-3316
:Web: [http://gov.bc.ca/employmentstandards  gov.bc.ca/employmentstandards]
 
'''Employment and Social Development Canada''' can help you bring a claim against your employer if you work in a federally-regulated industry.
:Toll-free: 1-800-641-4049
:Web: [http://www.esdc.gc.ca/ esdc.gc.ca]
 
The '''BC Human Rights Tribunal''' deals with claims that an employer breached your human rights.
:Toll-free: 1-888-440-8844
:Web: [http://www.bchrt.bc.ca/ bchrt.bc.ca]  


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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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