British Columbia’s employment protections give those employed by private companies extensive rights. However, the system isn’t perfect at preventing employees from being unfairly dismissed from their jobs. Wrongful dismissal can leave employees without either a job or a financial safety net while unemployed. If you’ve been dismissed from your job recently and are wondering if your termination was legal, there are some telltale signs to look for.
1. Dismissed Without Notice
Employers following the rules outlined in the Employment Standards Act (ESA) and defined by common law can choose between providing notice or giving severance pay when terminating an employee. Many employers choose notice in lieu of compensation to avoid paying the employee not to work. When they do choose notice, they are required to provide it at least two weeks prior to the employee’s last day of work.
Depending on job level or length of employment, notice on its own may not be sufficient during a dismissal. To avoid wrongly dismissing those in higher-paying, higher-responsibility jobs, both compensation and notice are often required. This inexactness is written into the law deliberately. ESA does not dictate what constitutes appropriate notice but rather, sets minimums employers work from. It is the employer’s responsibility to make a sound judgment regarding what the employee is owed and should reflect the agreed-upon stipulations of an employment contract. If you didn’t receive proper notice, you should speak with a lawyer.
2. Dismissed Without Compensation
Employers are within their legal right to choose notice or compensation when terminating an employee. There are reasons employers may choose to provide compensation instead of notice. If the employer decides it’s time to move on from an employee but does not want to give a minimum of two weeks’ notice, the business may opt to provide compensation instead. Most commonly, compensation is provided when dismissal happens within what would have been a reasonable notice window.
Employees terminated from positions above the entry level may be due substantial compensation and/or notice. Common law wrongful dismissal standards dictate that compensation and notice must be comparable to those in similar positions. Compensation must reflect all of the employee’s compensation at the time of termination, including how long they received that level of pay. Severance pay could include medical benefits, stocks, and bonuses. If you failed to receive compensation after being fired, you might have a valid claim for wrongful dismissal.
3. Termination With Justification
Employers are within their right to let an employee go at any time, for any reason, as long as they provide ample notice or compensation. The exception to this ESA rule is applied in the case of “for cause” terminations. “For cause” means the employee’s termination is justifiable based on their behaviour. Examples could include insubordination, chronically poor performance, theft, and intoxication while on the clock.
Even in the case of a justifiable termination, the employer is required to provide the employee with a written explanation for their firing. This explanation is likely to include details regarding the offending behaviours including dates, times, and the impact these had on the business. If you don’t receive a letter with this information, it’s possible you were actually wrongfully fired.
4. Inaccurate Statements
Employers who have made the mistake of wrongly dismissing an employee may try to make inaccurate statements to support their wrongdoing and avoid accountability. Remember, if an employer is claiming a just cause dismissal, they must provide written documentation demonstrating why the employee was fired, ideally at the time the employee is let go. If your former employer is making claims about your termination you disagree with, don’t hesitate to call a lawyer.
5. Discrimination
Unlike the ESA, which is a BC law, discrimination in employment is largely regulated at the national level through the Canadian Human Rights Act. In Canada, freedom from discrimination is considered a fundamental human right, meaning employment discrimination represents a serious breach of the law and ethics tantamount to human rights abuses. The Canadian Human Rights Act pertains to all aspects of employment including hiring, on-the-job treatment, and termination. As it concerns wrongful dismissal, discriminatory treatment is always serious even if the employer may have otherwise been within their right to terminate. There are no excuses for job discrimination. If you believe you are the victim of discrimination, submit a report without fear of retribution from those you accuse.
6. Changing Contract Terms
Wrongful dismissal does not only include outright termination or human rights discrimination. It can also occur when you leave a job. If an employer forces you out of a job by trying to change your employment contract without your consent, this is called constructive dismissal and it is considered a form of wrongful dismissal. Employers may also coerce employees into accepting lower pay than their contract states under threat of job loss. Any attempt to make changes to an employment contract under these conditions is illegal, especially if you decide to leave your job under these unfair conditions. Be sure to contact a lawyer if you see these signs.
7. Withheld Paychecks
Dishonest employers may engage in multiple illegal actions in their treatment of employees. Like wrongful dismissal, employers withholding pay is a serious issue across Canada. If you are a victim of wage theft or an employer attempting to argue that you are not due pay you’ve already earned, consider filing a complaint with the Employment Standards Board of BC. If you expect final pay and don’t receive it, you may be entitled to that compensation and more.
8. Previous Allegations
No one is allowed to intimidate you when making a complaint under the ESA. If you have concerns that were wrongly dismissed, check BC’s database containing published ESA violations. Investigate whether or not your employer has a previous history of wrongful dismissal or other impropriety. An employment lawyer can do this on your behalf. If you see a history, no matter how short, there could be cause for concern.
9. Fired After Whistleblowing
Public Interest Disclosure Act (PIDA) and the Whistleblowers Protection Act provide protections for public and private workers, respectively. These laws dictate that employees have the right to bring forth offences and wrongdoings to company leadership without fear of reprisal. However, employers may still try to fire whistleblowers. If you were terminated for reporting illegal activities or unethical practices within a company, this could be considered wrongful termination.
10. Dismissed During a Leave of Absence
Sometimes employees must take a leave of absence due to severe injury or illness, family emergencies, parental leave, or bereavement. Leave for these kinds of instances is protected under ESA. Being fired while on protected leave without legitimate grounds is considered wrongful dismissal.