If You're Fired: Wrongful Dismissal
Script 241 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
If you have been fired, or dismissed from your job, you may have several important questions such as:
Can your employer fire you?
Were you entitled to 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 280, called “Termination under the BC Employment Standards Act.” It explains how theEmployment 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 www.bclaws.ca.
Were you an employee? Were you in a union?
The script applies only to non-union employees – not to partners, contractors, or employees in unions. If you belong to a union, the collective agreement between the union and the employer has rules about terminating employees. If you’re a partner or contractor, your contract controls the situation. But many people called “contractors” or “partners” are actually employees under the law. The law focuses on the real relationship between you and the person or organization you worked for, not on what you were called. So, if a person or organization directed and controlled your work, provided the tools and equipment you needed to do your work, and paid you a wage, you were probably an employee under the law, even if you were called a partner or contractor.
Were you fired?
The script applies only if you were fired (dismissed), not if you quit (voluntarily resigned). Employers can fire employees in several ways. Your boss may say, “you’re fired.” Or your boss may fire you in a much more subtle way and the law recognizes this. Sometimes, even if you quit, the law will say that the employer forced you to quit and actually fired you. This is called "constructive dismissal". To prove it, you would have to show that you had no reasonable choice, other than quitting. That’s hard to show. Constructive dismissal may apply if the employer has changed any important part of your job without your consent, such as your pay, your job duties, or your job title.
Were you fired for “just cause”?
In most cases, employers can fire employees for “just cause” – without notice, or without pay instead of notice (the next paragraph explains what “just cause” is). Generally, employers can also fire employees without just cause. But in this case, the employer must give the employee notice of the dismissal, or pay instead of notice. There are some exceptions described later in this script.
What is “just cause”?
“Just cause” means a good reason to fire you. It usually means that you did not perform your job duties or you did something seriously wrong, like stealing from your employer or unreasonably refusing to follow your supervisor’s directions. Your employer may have just cause to fire you if you:
use drugs or alcohol that interfere with your job performance
ignore a strict workplace rule
intentionally disobey your boss
consistently refuse to follow a clearly defined chain of authority
are disloyal to your employer or put yourself in a conflict of interest; for example, you set up a business to compete directly with your employer
ignore a clear workplace policy, procedure, or rule
are dishonest about something important
are incompetent; for example, if you got a job only because you said you could repair automatic transmissions, and it turns out you can't
These examples don’t cover all the possible cases of just cause.
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 are fired without just cause, are you supposed to get notice or severance pay?
Yes. The following sections explain the details.
How much notice?
Your employment contract may say how much notice you get. If not, the contract has an implied term (oral or written) that the employer will give you reasonable notice of dismissal. Either way, an employer gives notice by telling you that your job will end on a particular date. Until that date, the employment contract continues – and so do your and your employer’s obligations under the contract.
How much notice is reasonable? It depends on several things including the type of job, how long you had it, your age, whether similar jobs are available, and your experience, training and qualifications. If you had a fixed-term employment contract – for example, a two-year term – the contract controls how much notice you get. In this case, the contract may say the notice period goes to the end of the two-year term. Or it could set a shorter notice period.
You have a duty during the notice period to look for another comparable job. The employer may have a duty, during the notice period, to let you look for another job, so you won’t be unemployed when your current job ends.
How much severance pay?
Employees who receive enough notice of their dismissal are not entitled to any pay instead of notice (sometimes called “severance pay”). However, employees who are fired without any, or enough, notice are entitled to severance pay. Severance pay is 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.
A guide to how much notice and pay
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:
3 months in a row, you get at least 1 week’s notice or pay
12 months in a row, you get at least 2 weeks’ notice or pay
3 years in a row, you get an additional week’s notice or pay for each additional year of service, to a maximum of 8 weeks
Under the Act, an employer can give you notice or pay, or a combination of the two, as long as you get the right amount in total.
Can you sue for more?
Yes, you can sue for breach of contract but there’s no guarantee you’ll win. The notice and pay amounts under the Act are minimums and you may be entitled to more under the law of contract. For example, if you worked six years, you are entitled to six weeks’ notice or pay under the Act, but you may be entitled to much more. Courts have awarded between 9 and 18 months of severance pay in many cases. Very senior and long-serving executives have received up to two years’ severance pay.
If you are fired and your employer gave you notice or severance pay, you should immediately talk to a lawyer to find out if you got all you are legally entitled to.
If you want only the minimum amounts in the Act, you can contact the nearest office of the Employment Standards Branch at 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.
Be careful about accepting a severance or termination package from your employer without first getting legal advice. You may be giving up important benefits.
Exception: when notice and pay are not required
If you were hired just to do one thing and you’ve done it, or just for a certain time and the time has ended, then your employment contract has finished and the employer doesn’t have to give you notice or pay.
If you think you have been wrongfully fired or dismissed
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, atwww.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 www.chrc-ccdp.ca. For more information, check scripts 270 “Protection against job discrimination” and 236 “Human rights and discrimination protection”.
Talk to a lawyer immediately to learn your rights and how to protect yourself.
[updated October 2012]
Dial-A-Law© is a library of legal information available by:
phone, as recorded scripts, and
audio and text, on the CBA BC Branch website.
To access Dial-A-Law, call 604.687.4680 in the lower mainland or 1.800.565.5297 elsewhere in BC. Dial-A-Law is available online at www.dialalaw.org.
The Dial-A-Law library is prepared by lawyers and gives practical information on many areas of law in British Columbia. Dial-A-Law is funded by the Law Foundation of British Columbia and sponsored by the Canadian Bar Association, British Columbia Branch.
© Copyright 1983-2012 The Canadian Bar Association, British Columbia Branch