Termination Under the BC ''Employment Standards Act'' (Script 280)

From Clicklaw Wikibooks

This script describes your rights under the BC Employment Standards Act (the Act) if your job ends because you quit, or are fired, or are laid off.

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

Script 241, called “If You’re Fired—Wrongful Dismissal” explains that if you’re fired, you may be able to sue your employer for damages (severance pay) for breach of contract, in addition to seeking the minimum protection under the Act. You may have rights under your employment contract or at common law greater than your rights under the Act. Deciding whether to sue can be complicated and you should get legal advice before deciding.

Does the Act apply?

Time limit for filing a claim under the Act and for suing

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

Were you an employee?

This script applies only to employees—not to partners or contractors (their contract covers them). But many people who are called contractors or partners are actually employees under the Act. The Act focuses on the real relationship between you and the person or organization you worked for, not on your job title. So if a person or organization directed and controlled your work, provided the tools and equipment you needed to do your work, and paid you a wage, you were likely an employee under the Act, even if you were called a partner or contractor.

Were you in a union?

This script applies only to non-union employees—not to unionized employees. The collective agreement between the union and the employer has rules on terminating employees and grievance procedures.

Did BC law apply to you?

This script applies only to employees covered by provincial law, which is most workers in BC. It doesn’t apply to employees of the federal government or of an industry it regulates, like banks and airlines—federal laws apply to them.

How did your job end?

Did you quit?

If you quit, your employer must pay you all wages and vacation pay owing within six days of your last day of work.

The Act doesn’t require you to give your employer any notice that you’re going to quit. However, your employment contract (which can be oral or written) may require you to do so. Rarely, employees with a lot of responsibility must give notice and can be legally liable if they do not. But these positions are uncommon and the circumstances are generally made known to the employee when they take the position. For most people, the amount of notice you should give depends on several things including the type of job, how long you have had the job, and the general labour market conditions. Even if you don’t have to give notice, it is usually a good idea to do so.

Were you fired?

Employers have the right to fire employees. They don’t need to have a reason to fire an employee. But the Act requires employers to give employees written notice that they’re being fired or to pay them wages instead of giving them notice. These wages are called compensation for length of service. An employer can give you an equivalent combination of notice and compensation. Some exceptions to the requirement to give notice are described later in this script.

If you get written notice of termination, your job continues until the end of the notice period. During the notice period, your employer can’t change your conditions of employment without your written consent.

If your employer gives you written notice during your annual vacation, while you are on a leave, or during a strike or lockout, the notice is not legally valid. Because you have the right to work during your notice period, the employer must wait until you return to work before giving you written notice of termination.

Were you fired indirectly?

Your employer may not directly fire you. Instead, it may do more subtle things. For example, it may demote you without your consent, or cut your salary. Or it may reduce your hours or your duties or fail to pay you. If your employer makes any important change to your job without your consent, it may still be a dismissal under Section 66 of the Act. If your employer treated you this way, the Employment Standards Branch may find that you were fired—even if no one ever said, “you’re fired”.

Did your employer sells the business?

If your employer sells the business, it can give you written notice of termination. Then, if you work for the new employer that bought the business, you start as a new employee. But if the seller does not give you written notice, and you work for the buyer, you have the same length of service as if the business had not been sold. If the buyer then wants to terminate your employment, it must give you written notice based on your total length of service with both employers, the seller and the buyer.

The basic rule requiring notice or compensation if you are fired

How much written notice or compensation you are entitled to if you are fired

The Act sets the minimum amounts of written notice and compensation you are entitled to if you are fired without just cause (explained below). An employer can give you notice or pay (compensation), or a combination of the two, as long as you get the proper amount in total. An employer does not need to give you a reason for terminating you. If you have been employed less than 3 months in a row, no notice or pay is required. After 3 months, you are entitled to the following notice or pay:

  • If you work 3 months in a row, you are entitled to least 1 week of notice or pay
  • If you work 12 months in a row, you are entitled to 2 weeks’ notice or pay
  • If you work 3 years in a row, you are entitled to 3 weeks’ pay, and to an additional week’s notice or pay for each additional year of service, to a maximum of 8 weeks

If your employer gives you pay instead of notice, the pay must be based on your average weekly wages during your last 8 weeks of normal work. Part-time employees are entitled to compensation based on the same formula. These are minimum amounts, and your employer cannot ask you to agree to less in a written contract of employment.

If you are fired, your employer must pay all your outstanding wages and vacation pay within 48 hours of firing you—no matter why you are fired.

If an employer fires you because of pregnancy or parental leave, family responsibility, bereavement or compassionate care leave, reservists’ leave, or jury duty, or because you filed a complaint against your employer, the employer may have to pay you more money in compensation unless it can show that you were not fired for one of these reasons. In some cases, you can be reinstated in your former job (get your job back)—but usually, this is not realistic for employers or employees.

Exceptions to the rule that requires notice or compensation

Did your employer have “just cause” to fire you?

Just cause means that you did something seriously wrong, such as steal from your employer or refuse to perform a job duty. If your employer has just cause, it can fire you without notice or compensation. In that case, your employer should give you the reason they are firing you without notice or compensation. Your employer may have just cause to fire you if you:

  • use drugs or alcohol that interfere with your job performance
  • ignore a strict rule of “no alcohol during work hours”
  • intentionally disobey your boss
  • consistently refuse to follow a clearly defined chain of authority
  • are disloyal to your employer or put yourself in a conflict of interest; for example, you set up a business to compete directly with your employer
  • ignore a clear workplace policy, procedure, or rule
  • are dishonest about something important

There may be other cases of just cause: things aren't always as clear-cut as these examples. An employer does not have just cause to fire you if it is just dissatisfied with your recent job performance. An employer may have to warn you before firing you or offer you reasonable job training, unless it gives you notice or compensation. If an employer gives you disciplinary letters and asks you to sign them, you can ask why they want you to sign. It may be to acknowledge that you received them, not to say that you agree. Often, there will be a place for you to respond if you don’t agree with the discipline.

Some employers may try to avoid giving you notice or compensation by saying there is just cause to fire you, even if there wasn’t. If you are fired and the employer says there was just cause, look carefully at the employer’s reasons for firing you to see if there really is just cause. For example, if you are fired because your employer is losing money, going out of business, or reorganizing, or because your job becomes redundant or is eliminated by technological change, those things are not just cause. A personality conflict between you and your boss may not be just cause—it depends on the facts. In all these cases, the employer must give you written notice or compensation. If you think the employer does not have just cause, you should contact the Employment Standards Branch.

Other situations when notice and pay are not required

An employer can fire you without giving you any notice or pay if you:

  • could accept or reject any work the employer offered you
  • were hired for a specific period and worked until the end of the period
  • were hired for specific work that would not last over 12 months
  • were laid off because of something unpredictable like a flood or fire
  • worked at a construction site for a construction firm
  • refused a reasonable offer of a comparable job with the employer

Some people are not covered by the Act (so they don’t get notice or pay if fired)

The Act does not apply to people who are:

  • professionals such as doctors, lawyers, architects, accountants, and dentists
  • real estate agents
  • secondary school students in work-study programs
  • “sitters” (defined in the regulations as persons employed in a private residence solely to provide the service of attending to a child, disabled or other person, but not including a nurse, domestic, therapist, live-in home support worker, or an employee of any of those persons)
  • in certain government incentive programs
  • in job creation programs under the Employment Insurance Program
  • primary or secondary school students working 15 hours or less a week as newspaper carriers
  • in industries regulated by the federal government such as banks and airlines

Other people not covered by parts of the Act that deal with termination are:

  • student nurses
  • teachers
  • voluntary and auxiliary fire fighters
  • fishers (this term is defined in the regulations)

Special cases

Rules for layoffs

Temporary layoffs are considered termination and require notice or compensation unless the employee consents to the layoff, or if there is an implied or explicit term in the contract that allows the layoff. A temporary layoff includes cases where you earn less than 50% of your normal wages because your work hours are reduced. If a temporary layoff is allowed, it can last up to 13 weeks in any period of 20 weeks. After 13 weeks of layoff, the Act considers an employee to have been terminated at the time when the layoff began.

Rules if 50 or more employees are fired

If an employer fires 50 or more employees at a single location within a two-month period, special rules apply unless the terminations are part of a normal seasonal reduction in staff. Where the terminations are not part of a normal seasonal reduction, the employees are entitled to more notice or pay—between 8 and 16 weeks more—depending on the total number of employees who are terminated. In this situation, you should contact the Employment Standards Branch to obtain more information about your rights.

Summary and where to get more information

Employment Standards Branch—if you’re fired or lose your job in some other way and don’t get written notice or compensation for length of service, the Employment Standards Branch can help you recover compensation and any other unpaid wages owing to you. You can call the information line (1.800.663.3316) or go to the website to learn if you have a right to notice or compensation, and if so, how much. (The Branch has factsheets on termination, just cause, and many related topics.)

You will then probably have to ask for payment from your employer through a Self-Help Kit, though there are some exceptions to this. If your employer fails to pay after you have made a request, you can make a written complaint to the Employment Standards Branch online, in person, or by mail. There is a short time limit to do this: just 6 months from when you were terminated.

Suing—you may be able to sue for breach of contract and get more than the minimum you are entitled to under the Act. Check script 241, called “If You’re Fired—Wrongful Dismissal” for more on this. The time limit to sue is 2 years from when you were terminated. You should get legal advice about whether to sue, and before you accept severance or a termination package from your employer.

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

Human rights—if you think you were fired because of your age, gender, religion, or some other personal characteristic, you may have a separate claim under human rights law. For more information on human rights claims, contact the BC Human Rights Tribunal at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC.

Federal law—if you worked for the federal government or in an industry it regulates, including banks and airlines, you can contact the Canadian Human Rights Commission at 604.666.2251 in Vancouver and 1.800.999.6899 elsewhere in BC.

Check script 270, called “Protection against Job Discrimination”, script 236, called “Human Rights and Discrimination Protection”, and script 282 on employment insurance.

[updated October 2017]

The above was last edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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