In British Columbia, labor markets are regulated in a number of ways designed to ensure working people are treated fairly and expectations for those who employ them are clear. An important area of the employee-employer relationship is mediated by employment contracts, a standard yet critical aspect of employment for nearly every working person in British Columbia. Employment contract enforcement is supported by the province’s preeminent employment law, The Employment Standards Act (ESA), which creates guidelines for employment contracts that employers must respect.
Employees in BC should be aware of the ESA’s basic provisions regarding employment contracts and the rules mediating the employee-employer relationship. The procedures by which employers are legally permitted to conduct employee dismissals, also known as terminations, whereby an employee is let go from an active employment contract, are dictated generally by the ESA as well as the details within individual employment contracts. When contract terms are violated during the course of an employee’s dismissal, this can amount to wrongful termination in the eyes of the law. Wrongful termination for breach of contract could mean that employees are owed damages for their mistreatment and any damages incurred as a result.
ESA Minimum Dismissal Terms and Requirements
Understanding the basics of breach of contract requires understanding the legal employment guidelines set by the ESA. Employees should be aware that no matter what a contract states, employees are fundamentally owed one of two things when dismissed from a job:
- Minimum notice of their dismissal
- Pay instead of notice when they are dismissed without at least two weeks or more of notice
The ESA sets these basic minimums to simplify the writing and execution of employment contracts so that employees are not taken advantage of. Wrongful dismissal, occurring when an employee is unlawfully terminated, represents a serious problem, and setting clear expectations helps employees know when they’ve been wronged.
The bottom line regarding employment contracts and ESA minimums: No employment contract, even when an employee has agreed to it and signed the document, releases an employer from these basic responsibilities.
Additional Dismissal Requirements
These are not only requirements for dismissal in BC but they are fundamental to the employment relationship and must be met to avoid wrongful termination for breach of contract. Additionally, those who are terminated for reasons of performance or conduct detrimental to the employer (“with cause”) must have legitimate reasons for their dismissal in writing upon their termination. In cases where the employee is provided pay instead of notice, a final paycheck must be issued immediately following their dismissal.
Additional requirements for dismissal also pertain to newer employees who are legally designated as “probationary employees” under the ESA. Contrary to popular opinion , the contract issued by the employer does not define when an employee is within the probationary period of a job. The ESA defines probationary periods as being within the first three months from the employee’s first day, regardless of how many hours per week that employee works.
Probationary employees are not only owed ESA minimum notice or pay but are also due support from employers when performance issues are the reason for the dismissal. Employers cannot outright fire probationary employees, without first attempting to remedy performance issues prior to providing notice or pay in order to abide by provisions within the ESA.
Beyond ESA Minimums
In the above passage, we established how the dismissal minimums require the employee to receive at least two weeks’ notice of their termination or two weeks’ pay at their regular pay rate, as required by the ESA.
However, the majority of contracts defining employment agreements for the working people of BC establish dismissal terms that go beyond ESA minimums. In addition, even in scenarios where employment contracts provide only the requisite two weeks’ notice or pay, the employee may be owed more depending on their length of service or rate of pay with a company.
In some cases, employment contracts may become outdated over the course of an employment term, without having ever been updated even when that employee had received a raise or a promotion. The employee’s extended tenure and above baseline rate of pay require more than the ESA minimums for legal dismissal because the ESA requires that notice or pay reflect the employment conditions experienced in total. The exact specifications, sometimes referred to as severance packages, required to legally dismiss these employees are not outlined in the ESA but can, and ideally should be, clearly outlined in the original employment contract.
In situations where the employer does not define legally appropriate notice or pay schedules directly within the contract, the employer is required to determine a fair severance package in order to legally dismiss an employee. Even severance arrangements above and beyond ESA minimums may not be enough to satisfy legal dismissal requirements if they do not accurately reflect employment conditions.
Constructive dismissal is a form of wrongful dismissal and can represent a type of breach of contract occurring when an employer changes the job descriptions, responsibilities, hours, or compensation substantially without the employee’s consent or a new employment contract.
Employers may attempt to use constructive dismissals as a way to avoid the minimums set forth by the ESA and the original contract details. A hypothetical example might be to reduce an employee’s regular hours from 40 per week to 10 per week or to suddenly start assigning the employee a night shift when the original employment contract states that they will only work days. These examples represent breaches of contract and could be designed to make the employment situation untenable for the employee, forcing them to quit and thus unfairly and unlawfully forcing them to relinquish the minimum notice or pay they are owed.
Other Forms of Constructive Dismissal
Constructive dismissal comes in many forms and can also represent deceit or coercion on the part of the employer towards an employee. Employers may reduce pay or working hours with a verbal promise to reverse these decisions down the line. This is an illegal tactic even when the employer follows through on their promise and could represent wrongful dismissal whether the employee is dismissed from the job or not.