Due to the significant power imbalance between employers and their employees, workers are at risk of mistreatment. Mistreatment often occurs when employees are dismissed from their job. Knowing what to do when you get fired unfairly, whether you’re fired without written explanation or let go without notice or severance pay, starts with knowing your rights as an employee. The rights established by BC’s Employment Standards Act (ESA) and common law standards help to level the playing field and protect employees like you when they are fired unfairly.
Learn the Basics of Wrongful Termination
When an employer fails to follow the established rules for terminating an employee–whether by accident or due to self-interest–they can find themselves in trouble with the law. If you are unjustly fired or unfairly terminated from your job, this is called wrongful dismissal. Wrongful dismissal can have serious consequences for both the employee and the employer. The employee experiences unexpected unemployment they may not be prepared for, while the employer exposes themselves to the consequences of violating employment law.
Employers have the right to terminate an employee for any reason, even when the employee has done nothing wrong. The employer can only dismiss these employees with advanced notice or severance pay. When these legal obligations go unmet, it is called wrongful dismissal and employees can be owed monetary damages intended to offset the harm done to them by their employer.
What to Do When Wrongfully Terminated
Take the following steps to assert your rights as a worker in BC and better understand what constitutes a wrongful dismissal. Contact an experienced employment lawyer if you believe you have been wrongfully dismissed.
1. Seek a written explanation for your termination.
The ESA outlines when an employee can be fired for misconduct or chronically poor performance. This is called ‘with cause’ termination. ‘With cause’ dismissal occurs when an employment contract has been breached or the employee has engaged in conduct detrimental to the employer such as theft, physical violence, or insubordination. It is illegal for employers to avoid providing an employee notice or severance pay using an unjustified firing.
2. Determine if severance pay or notice has met legal standards.
British Columbia’s ESA provides guidance to employers for providing written notice of dismissal or severance pay. These guidelines, along with common law standards, establish the mandatory minimum steps employers must take when terminating an employee ‘without cause.’ Notice and severance compensation requirements differ dramatically depending on a variety of factors, with established minimums rarely meeting legal requirements.
The factors dictating the required notice of severance pay include:
- Length of employment
- Regular pay and other compensation
- Availability of similar positions
- Contract stipulations
- Highest level position held
- Comparable employment arrangements
For longer-tenured employees, only providing notice is unlikely to be sufficient, even when provided well in advance. Common law standards can dictate that those in higher level positions require both notice and severance equal to regular pay plus their employee benefits.
3. Determine if your human rights have been violated.
The law protects you as both an employee and as a Canadian resident or citizen afforded basic human rights. These rights include not being fired or terminated for reasons that include discrimination, whether by declared gender, race, ethnicity, or religious background. A discriminatory firing is a grave offence and can be devastating for the wronged employee and the Canadian community at large. If you believe you have been unjustly discriminated against at any point during your employment, including during your hiring or termination, contact an experienced employment lawyer immediately. Also, consider filing a complaint with BC’s Human Right Tribunal as well as the employment standards board.
4. Collect evidence.
Be sure to save any harassing or coercive communications. If these were not made electronically, keep a journal of the date, time, and nature of conversations relevant to your dismissal. Canada’s human rights laws give employees the right not to be discriminated against on the basis of race, ethnicity, religion or gender while being hired, while employed, or when they are let go. Be sure to note interactions that cause you to believe you have been discriminated against and take them to BC’s Human Rights Tribunal.
Save a copy of your original employment contract, as well as any amendments to it during the course of employment. Let your lawyer know if your employer had you sign, or asked you to sign, a severance agreement prior to or directly after your termination. Severance agreements that attempt to circumvent notice and severance pay requirements are illegal. Wrongful dismissal also includes cases of constructive dismissal, whereby employers violate the terms of the original employment contract by reducing pay, changes to working hours or job responsibilities without employee consent, and a new contract.
5. Start looking for a new job.
Even if an employee believes they have been wrongfully dismissed, BC law requires that all employees who are terminated actively look for a new job. Neglecting this step can result in an employee forfeiting damages owed due to wrongful dismissal.
6. Contact a lawyer.
The ESA and common law standards establish rights for employees. It is your prerogative to seek legal remedy when those rights are violated.
Contact an experienced employment attorney who can help you understand your rights and whether you have been wrongfully dismissed. The statute of limitations for wrongful dismissals is two years from the date of termination. Don’t wait; it can take time to collect evidence and build your case.
You can also contact BC’s employment standards office. If your wrongful dismissal includes unpaid wages or other improperly withheld compensation, making a formal complaint may help to reclaim this lost compensation faster. However, determining wrongful dismissal is a legal matter that must be decided by employment courts. The BC standards office will not determine whether you have been wrongfully dismissed or award you the damages you may be owed.