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

*Were you entitled to advance notice that you were going to be dismissed?

*Can you get severance pay?

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 ''[http://www.bclaws.ca/Recon/document/ID/freeside/00_96113_01 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 are not available under your employment contract. This can be a complicated area and you should get legal advice about your case.  

*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).

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.

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.

*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.

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.

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.

The ''Employment Standards 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 [https://www.labour.gov.bc.ca/esb/contact/welcome.htm nearest office of the Employment Standards Branch] (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.

#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 [http://www.bchrt.bc.ca/ BC Human Rights Tribunal] at 604.775.2000 in Vancouver and 1.888.440.8844 elsewhere in BC. 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 [http://www.chrc-ccdp.ca/ Canadian Human Rights Commission] at 1.888.214.1090. 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.

[updated May 2016]