If You Are Fired: Wrongful Dismissal (No. 241)

From Clicklaw Wikibooks
This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Jennifer Hagen, Employment Standards Branch in October 2017.

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”.

Contents

Understand your legal rights

Other laws apply if you quit or were laid off

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’ve been temporarily let go from your work, see our information on getting temporarily laid off (no. 281).

Your legal rights depend on the type of worker you are

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

A BC law, the 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.

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 has rules about how workers can be let go.

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.

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

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.

You can be 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).

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.

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

  • are dishonest about something important
  • steal from your employer
  • put yourself into a conflict of interest (for example, setting up a business to compete with your employer)
  • 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

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

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.

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 if you are fired.

You can’t be fired for doing something you have the legal right to do

Your employer can’t fire you for doing something that’s permitted under the Employment Standards Act. For example, you can’t be fired for any of the following:

  • 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 Work Safe BC.

You can’t be fired for a reason that violates your human rights

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 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 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).

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

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:

  1. They can warn you in advance they plan to let you go. This advance warning is called the “notice period”.
  2. 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 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.

The law sets out the minimum notice required

The Employment Standards Act sets the minimum notice period (or severance pay) depending on how long you’ve been in the job:

  • 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.

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

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”

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.

Tip

The notice periods under the 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 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.

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.

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

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

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:

  • 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

Under the 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:

  • 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.

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 if your employer has made big changes to your job.

During the notice period

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.

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.

Deal with the problem

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

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 or low-cost legal help.

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

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.

Step 3. Consider your legal options

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.

Making a complaint to the Employment Standards Branch

If you think your employer has breached the Employment Standards Act, you can make a complaint to the Employment Standards Branch. This is the government office that administers the Act.

To start the process, download the Branch’s 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.

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 gov.bc.ca/employmentstandards.

Filing a claim with the Human Rights Tribunal

If your employer fired you for a reason that violates your human rights, you can file a claim with the 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).

Starting legal action against your employer

If your employer clearly breached your rights by firing you, you may want to consider suing them for "wrongful dismissal".

If your claim is for less than $35,000, you can sue in Small Claims Court. If your claim is for less than $5,000, you can bring it to the Civil Resolution Tribunal. This is an online tribunal that encourages a collaborative approach to resolving disputes.

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

Tip

For step-by-step guidance on these options, see People’s Law School’s information on if you are fired.

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: 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: 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: bchrt.bc.ca
Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.


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