British Columbian laws establish legal rights for employees who are dismissed from their job. Those rights include receiving sufficient legal notice of dismissal instead of monetary compensation. BC’s Employment Standards Act (ESA), common law, and conditions of employment are all factors in determining the minimum legal notice required for dismissal.
What is an ESA notice period?
Minimum notice standards refer to the period of time employers have to make employees aware of their eventual dismissal. When an employer does not provide notice, or the notice period is too short, then the employer may have violated BC employment law. When this occurs, it is called wrongful dismissal and it is a violation of an employee’s legal rights. Those who have been wrongly dismissed can turn to the courts to enforce legal dismissal standards. Damages awarded by the courts hold offending employers accountable, help to prevent future wrongful dismissals, and compensate wrongfully dismissed employees for the hardships they experienced.
How Minimum Notice Affects Dismissal
The conditions under which minimum notice applies are related to the reasons an employee is dismissed. Employees dismissed ‘for cause’ have been let go due to poor job performance or on-the-job misconduct. When poor performance or misconduct is not involved in a dismissal, it is ‘not for cause.’ For an employer to dismiss an employee not for cause, the company must provide notice or monetary compensation. This requirement applies to nearly all employees in BC, including employees that are full-time, part-time, probationary, or temporary.
Employees have a right to continue working and earning wages during the notice period. An employer can not put an employee on notice while the worker is on vacation or leave, or is temporarily laid off, on strike, or absent due to medical reasons.
ESA Minimum Notice Standards
ESA minimum notice standards are:
- For 3 months of consecutive employment, at least 1 week’s notice or pay is required.
- For 12 months of consecutive employment, at least 2 weeks’ notice or pay is required.
- For 3 years of consecutive employment, an additional week’s notice or pay for each additional year of service, up to a maximum of 8 weeks, is required.
How Minimum ESA Standards Affect You
While the ESA establishes minimums for employee notice, this minimum often fails to satisfy an employer’s legal obligations. Some employers may attempt to establish a different period of notice or severance compensation with agreed-upon contract stipulations. Some contracts may actually include severance packages that exceed ESA minimums. However, employers can also try to reduce their legal obligations to employees by shrinking or eliminating notice periods with illegal contract clauses. A company may also claim an employee is fired for cause to avoid providing notice when in fact, no justification for dismissal. Circumstances like these can be entered into evidence in a wrongful dismissal case.
Employers must abide by ESA and common law standards, even if there is no formal employment contract based on the implied conditions of employment. These implied terms are generally defined by what is customary in similar employment arrangements.
The ESA grants employers the option to financially compensate employees for severance instead of providing notice. Employers may choose this option when they are within the required notice window. Notice or compensation must be commensurate with employment conditions, including:
- Length of employment
- Employee compensation
- Hours worked per week
- An existing employment contract
- Common law standards
If you believe you were wrongfully terminated, you can report it to the Employment Standards Branch. If you were not provided the required legal notice prior to your severance, you may have legal recourse and could be owed compensation. Contact a lawyer at Stephens & Holman to have your wrongful dismissal case reviewed.