BC employers: Avoiding wrongful discharge accusations
Understanding upfront what BC law requires to lawfully terminate an employee will help employers subject to employment standards lessen the risk of related disputes.
Most employers in British Columbia must comply with the province’s Employment Standards Act (ESA or the Act), which establishes standards for the treatment of employees. One major area of responsibility the Act imposes on covered BC employers is to follow required procedures when they terminate employees from their jobs.
If an employer fails to comply with these requirements when it lays off a worker, the employer may be liable for wrongful discharge.
(BC employers who are not subject to the ESA like banks may be subject to federal employment laws instead.)
How does an employer legally terminate an employee?
BC employment standards say that an employer may let go of an employee in these scenarios:
- The employer gives the minimum notice of termination required by the employee’s length of employment. The ESA provides a formula for calculating the date notice is due, which ranges from one to eight weeks depending on the number of consecutive months on the job. (Common law may require an even longer notice period.)
- In lieu of notice, the employer pays severance pay corresponding to what earnings would have been during the notice period.
- The employer gives a combination of money due and shortened notice.
- The employer complies with any terms agreed to in the employment contract that are more generous than those established by the ESA.
- The employee has worked less than three months in a row.
- The employee quits or retires.
- The employer dismisses the employee for “just cause.” When an employer fires an employee for cause, the ESA notice and severance requirements do not apply, but in a less serious case of workplace misconduct, the employee has the right to warnings and the chance to improve first. The employer must inform the employee of its reason for finding just cause, which the employer should thoroughly document.
If a BC employee’s written or implied employment contract (that is not a union contract) sets lower, less generous terms than those set by the ESA, those terms are not enforceable. Instead, the minimum standards in the Act apply.
Exceptions to the Act’s termination provisions
The Act lists several exceptions to which these termination standards do not apply, most involving temporary jobs, seasonal work or predefined terms. In addition, the standards do not pertain to construction workers, employees who turn down “reasonable alternative employment by the employer,” employees whose employment contracts become impossible to fulfill because of an unforeseeable circumstance, certain teachers and a few others.
A notice of termination is not effective if the employee is away from work for a valid reason like an annual vacation, temporary layoff or medical problem. Different rules apply when an employer will terminate 50 or more workers at the same location within two months. BC employers may not terminate employees as retaliation for doing something the law allows such as taking a leave for allowable reasons or reporting workplace safety issues.
An employer who fails to follow the ESA standards regarding termination may wrongly discharge an employee. The employer could face a formal complaint by the employee for wrongful termination before the Director of Employment Standards or on appeal from there to the Employment Standards Tribunal. The employee may choose to file a lawsuit. Legal remedies may be available under the Act or under common law (law made by judges through case opinions).
Section 118 of the Employment Standards Act preserves the common law right to sue, however s. 82 limits the right to sue if a complaint has been made to the director first. All employment claims are subject to time limits that may vary with circumstances. For that reason, it is important to obtain legal advice early before deciding how to handle an employment law situation. Employment Standards Act compensation and process requirements are minimum requirements, but common law often provides for greater compensation unless there is an enforceable contract limiting employee rights to Employment Standards Act minimums, so again legal advice is essential to understanding what your rights and obligations are in a particular situation.
The lawyers of Campbell Redmond advise a variety of business types and sizes in Surrey, Langley and Delta, British Columbia, on how to prevent or respond to employee allegations of wrongful termination.