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{{Dial-A-Law Blurb}}
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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}}
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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”.
  
If you have been fired, or dismissed from your job, you may have several important questions such as:
+
==Understand your legal rights==
*Can your employer fire you?
 
*Were you entitled to advance notice that you were going to be dismissed?
 
*Can you get severance pay?
 
*Can you sue for wrongful dismissal?
 
  
This script answers these and other questions. You should also check script [[Termination Under the BC ''Employment Standards Act'' (Script 280)|280]], called “Termination under the BC ''Employment Standards Act''”. It explains how the ''Employment Standards Act'' (the Act) protects employees who lose their jobs. You may have two separate types of rights: first, your rights under the Act; second, your rights under your employment contract. Your contract rights may be greater than your rights under the Act. But your contract rights to certain things (such as severance pay and notice of dismissal) cannot be less than the minimum standards the Act sets. If they are, you are still entitled to the minimum protections of the Act. And you may have rights under the Act, such as the right to overtime pay, that may not be available under your employment contract. This can be a complicated area and you should get legal advice about your case. The Act is available at [http://www.bclaws.ca www.bclaws.ca].
+
===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 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)]].
  
==Were you an employee? Were you in a union?==
+
===Your legal rights depend on the type of worker you are===  
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.
+
Your rights when you lose a job depend in part on the type of worker you are seen to be under the law.  
  
==Were you fired?==
+
====Rights under provincial law====
The script applies only if you were fired (dismissed), not if you quit (voluntarily resigned). Employers can fire employees in several ways. Your boss may say, “you’re fired.” Or your boss may fire you in a much more subtle way and the law recognizes this. Sometimes, even if you quit, the law will say that the employer forced you to quit and actually fired you. This is called "constructive dismissal". To prove it, you would have to show that you had no reasonable choice, other than quitting. That’s hard to show. Constructive dismissal may apply if the employer has changed any important part of your job without your consent, such as your pay, your job duties, or your job title.
+
A 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.
  
==Were you laid off?==
+
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 employer can lay you off temporarily if there is a work shortage and at least one of the following three situations exist:
 
*you have a written employment contract that allows for a layoff.
 
*you work in an industry where lay-offs are standard practice, such as the logging industry.
 
*you consent to the lay-off.
 
  
If neither (a) nor (b) apply to you, and your employer wants to lay you off, you should give the employer a note saying that you do not consent to a lay-off. If your employer still lays you off, it is the same as firing you without just cause (explained in the next section).
+
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 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.
+
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.
  
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.
+
{| class="wikitable"
 +
|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.
 +
|}
  
==Were you fired for “just cause”?==
+
====Rights under your employment contract====
In most cases, employers can fire employees for “just cause” – without notice, or without pay instead of notice (the next paragraph explains what “just cause” is). Generally, employers can also fire employees without just cause. But in this case, the employer must give the employee notice of the dismissal, or pay instead of notice. There are some exceptions described later in this script.
+
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.)
  
==What is “just cause”?==
+
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.
“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
+
===You can be fired for “just cause”===
*ignore a strict workplace rule
+
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
 
*intentionally disobey your boss
*consistently refuse to follow a clearly defined chain of authority
+
*repeatedly breach a clear workplace policy or rule
*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
+
====Unsatisfactory performance is not just cause====
*are dishonest about something important
+
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.
*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
+
 
 +
====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.
 +
 
 +
{| class="wikitable"
 +
|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===
 +
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:
 +
*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].
 +
 
 +
===You can’t be fired for a reason that violates your human rights===
 +
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)]].
 +
 
 +
===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:
 +
#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.
 +
 
 +
===The law sets out the minimum notice required===
 +
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’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.
 +
 
 +
{| class="wikitable"
 +
|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===
 +
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.
 +
 
 +
{| class="wikitable"
 +
|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.
 +
 
 +
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.
 +
 
 +
{| class="wikitable"
 +
|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===
 +
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 [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:
 +
*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.
 +
 
 +
{| class="wikitable"
 +
|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===
 +
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 and Low-Cost Legal Help (No. 430)|free or low-cost legal help]].
 +
 
 +
{| class="wikitable"
 +
|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===
 +
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 ''[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.
  
These examples don’t cover all the possible cases of just cause.
+
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.
  
As a general rule, an employer does not have just cause to fire you if the employer is simply dissatisfied with your job performance. An employer may have to warn you before firing you for just cause and may even have to offer you reasonable job training.
+
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].  
  
==If you are fired without just cause, are you supposed to get notice or severance pay?==
+
====Filing a claim with the Human Rights Tribunal====
Yes. The following sections explain the details.
+
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)]].  
  
==How much notice?==
+
====Starting legal action against your employer====
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.
+
If your employer clearly breached your rights by firing you, you may want to consider suing them for "'''wrongful dismissal'''".  
  
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.
+
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.
  
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.
+
If you do decide to sue, there are time limitations on filing lawsuits (usually '''two years''' from when you were fired).  
  
==How much severance pay?==
+
{| class="wikitable"
Employees who receive enough notice of their dismissal are not entitled to any pay instead of notice (sometimes called “severance pay”). However, employees who are fired without any, or enough, notice are entitled to severance pay. Severance pay is intended to put you in the same position you would have been in if you had received proper notice. Severance pay includes lost wages and vacation pay. It may also include other employment benefits (like bonuses) that would have been paid during the notice period. If you had a fixed-term employment contract, severance pay is based on the wages and benefits that you would have got until the end of the fixed term, unless there was an early termination clause. In that case, you would get severance pay only until the end of the earlier term. Again, you have a duty to look for other comparable work. If you find such work during the notice period, the employer may try to get some of the severance pay back from you – because you won’t be unemployed for the whole notice period that the severance pay covers.
+
|align="left"|'''Tip'''
 +
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].  
 +
|}
  
==If the employer offers you your old job or a similar job==
+
==Common questions==
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==
+
===Under a fixed-term contract, how much notice am I entitled to?===
The ''Employment Standards Act'' (the Act) sets the following minimum amounts for notice (or pay instead of notice) that must be given to an employee dismissed without just cause. If you have worked less than 3 months in a row, the Act does not require any notice or pay. But if you have worked for at least:
+
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.)
*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.
+
Once your fixed-term contract is finished, your employer doesn’t have to give you notice or pay.  
  
==Can you sue for more?==
+
===My employer gave me notice while I was on vacation. Is that legal?===
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.
+
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.
  
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.
+
===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.  
  
If you want only the minimum amounts in the Act, you can contact the nearest office of the Employment Standards Branch at [http://www.labour.gov.bc.ca/esb www.labour.gov.bc.ca/esb] and phone 1.800.663.3316. It’s also listed in the blue pages of the telephone book. But if you file a complaint under the Act and settle your entire claim for “wrongful dismissal”, you won’t be able to sue for breach of contract.
+
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.
  
Be careful about accepting a severance or termination package from your employer without first getting legal advice. You may be giving up important benefits.
+
===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.
  
==Exception: when notice and pay are not required==
+
Your employer must give notice with the following lead-times:
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 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 you think you have been wrongfully fired or dismissed==
+
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.
#Get legal advice before accepting a demotion or transfer that you think is not fair.
 
#Get legal advice before accepting a payment from your employer as full and final settlement if you think you are entitled to more. If you settle your claim with your employer, a court may say you gave up your right to sue. You can take a reasonable time to think things over and get proper advice.
 
#Start looking for another job immediately. Even if you later sue your employer and win, you still have a duty to seek new and comparable employment right away. Keep an accurate record of your job-search, including copies of your application letters and e-mails, plus any replies you get.
 
#If you think you were fired because of your age, gender, religion, or some other personal characteristic, you may have a separate claim under human rights law. In that case, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. See the Tribunal’s website, at [http://www.bchrt.bc.ca www.bchrt.bc.ca], for more information. If you worked for the federal government or in an industry regulated by the federal government, like banks, airlines, railways, phone and cable companies, contact the Canadian Human Rights Commission at 1.888.214.1090. The Commission’s website is [http://www.chrc-ccdp.ca www.chrc-ccdp.ca]. For more information, check scripts [[Protection Against Job Discrimination (Script 270)|270]] “Protection Against Job Discrimination” and [[Human Rights and Discrimination Protection (Script 236)|236]] “Human Rights and Discrimination Protection”.
 
#Talk to a lawyer immediately to learn your rights and how to protect yourself.
 
  
 +
===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.
  
[updated June 2014]
+
==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 14:16, 29 March 2019

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”.

Understand your legal rights[edit]

Other laws apply if you quit or were laid off[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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?[edit]

“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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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”[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

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[edit]

Under a fixed-term contract, how much notice am I entitled to?[edit]

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?[edit]

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?[edit]

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?[edit]

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?[edit]

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[edit]

If you are fired[edit]

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
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