Losing your job is often an incredibly difficult and stressful event for the employee. For the employer, the process can also be very challenging and problematic. It is important for both employees and employers to know their legal rights and obligations. This is best achieved by seeking out clear and comprehensive legal advice from an experienced employment lawyer. This article is not intended to provide legal advice, but to provide a primer on the basic concepts surrounding termination of employment in BC.
In British Columbia, employers are generally allowed to terminate an employment relationship with an employee. However, depending on the basis for termination, the employee will have certain legal rights and the employer will have certain legal obligations.
There are two categories of termination of employment – termination with cause and termination without cause. The rights and obligations required at law will vary depending on which form of termination has occurred.
Termination With Cause (Just Cause) in BC
In British Columbia, an employer can dismiss an employee for just cause if the employee has committed serious misconduct. Examples may include theft, fraud, violence, or harassment. If an employee has committed such serious misconduct, then the employer may have just cause to terminate the employee.
What Constitutes Serious Misconduct for Just Cause?
Not every instance of misconduct will justify dismissal. In fact, it is typically very difficult for an employer to establish that it had just cause to dismiss an employee. The courts have states that the goal is to strike an effective balance between the severity of an employee’s misconduct and the sanction imposed.
The courts question is generally whether the misconduct, viewed in the context of all of the surrounding circumstances, has fundamentally damaged the employment relationship.
What Is Required to Prove that an Employer had Just Cause for Termination?
The burden of proof falls on the employer alleging that it had just cause for termination. This is a heavy onus for the employer to overcome. Typically, the employer will be required to show that the alleged misconduct was seriously incompatible with the employee’s duties and went to the root of the employment relationship.
The courts have emphasized that for an employer to establish just cause for termination, the employer may also be required to show that the employer had made its expectations clear to the employee, that the employee had been properly trained, that the employee had been given prior warnings and/or lesser discipline, and an opportunity to correct the misconduct. Employers who respond disproportionately to non-egregious conduct will typically not be able to establish that the conduct provided just cause for termination.
If an Employee is Terminated With Cause, is the Employee Entitled to Working Notice and/or Severance Pay?
No. Employees who are terminated with cause are typically not entitled to working notice or severance pay in lieu thereof, whether under the Employment Standards Act or at common law.
Can an Employee Terminated With Cause Receive EI?
No. Employees who are terminated with cause are typically ineligible for EI benefits.
Termination Without Cause in BC
In British Columbia, most employment relationships that are brought to an end by the employer will be the result of termination without cause. This typically occurs when an employer ends an employment relationship for reasons other than serious misconduct.
Does An Employer Need a Reason To Terminate an Employee Without Cause?
Termination without can occur for a variety of reasons. Common examples include lack of work, downsizing, restructuring, or changing business direction. However, an employer can generally dismiss an employee for any number of reasons or for no reason at all. Further, an employer is generally not required to provide you with a reason for termination.
There are some exceptions at law. For example, an employer cannot fire an employee for discriminatory reasons such as religion, race, disability, sexual orientation, or age. Further, an employer also cannot fire an employee as a result of the employee making a WorkSafe BC claim, or while on a protected leave such as a maternity leave or due to a summons for jury duty.
If an Employee is Terminated Without Cause, is the Employee Entitled to Working Notice and/or Severance Pay?
Yes, in most situations in BC, an employee that has been dismissed without cause will be entitled to working notice. The legal principle beyond the requirement that an employer provide working notice of a termination date is to provide cushion against the adverse effect of unemployment and economic hardship that a person may experience upon having their employment terminated. However, for obvious reasons, an employer may not wish to have an employee continue to work for the employer once working notice of termination has been given. As an alternative, the employer can typically provide severance pay in lieu of notice equal to the pay that the employee would have received during the notice period.
How is the Working Notice Period Determined in BC?
In B.C., there are generally three sources of authority that can establish an employee’s entitlement to working notice or severance pay in lieu of notice:
- the Employment Standards Act;
- the employment agreement (if any); and
- the common law.
Notice and Severance Under the BC The Employment Standards Act
After three months of employment, an employee in British Columbia will be entitled to working notice, or severance pay in lieu of working notice, in accordance with the Employment Standards Act. This legislation imposes the mandatory minimum amount of working notice / severance pay that an employer must pay an employee upon termination of employment without cause. The notice required under the Employment Standards Act is based on the length of employment.
| Length of Employment | Minimum Notice |
| 3 to 12 months | 1 week |
| 12 months to 3 years | 2 weeks |
| 3 years | 3 weeks |
| 4+ years | +1 additional week/year up to a maximum of 8 weeks |
The Employment Standards Act set out the minimum amount of notice that an employer must provide an employee upon termination without cause. However, an employee will often be entitled to additional notice under the common law that has been established by the courts.
How Employment Agreements Affect Notice and Severance
Before turning to the common law, it is important to consider the terms of any employment agreement that exists between the parties. While an employer and an employee cannot contract out of the notice obligations set out in the Employment Standards Act, the courts have enforced employment agreements that otherwise limit the amount of additional common law notice that the employee may be entitled to.
If an employment agreement includes a term that clearly and unambiguously specifies an employee’s entitlement to notice or severance pay in lieu, the courts will generally enforce that term. An employer will have an easier time relying on such a term if it is clearly set out in writing in the agreement. In cases where the meaning of such a term is disputed, the courts in BC will take a practical, common-sense approach to interpreting termination clauses.
Typically, such clauses will limit the employees entitlement to notice to the mandatory minimum notice set out in the applicable employment standards legislation – such as the Employment Standards Act in BC. It is important to carefully review such terms in order to consider their impact on wrongful dismissal claims.
Common Law Notice and Severance in BC
Under the common law, when an employee’s employment is terminated without cause in BC, the employee is presumed to have been entitled to reasonable working notice of that termination. Such entitlement is in addition to minimum amounts set out in the Employment Standards Act, and is subject to any binding limitations set out in an employment agreement.
Common law notice is determined on a case-by-case basis by the courts. The factors to consider were established by the Supreme Court of Canada in the landmark decision of Bardal v. Globe & Mail Ltd., where the court held that factors to be consider included:
- Length of Service
- Age of the Employee;
- Character of the employment; and
- Availability of similar employment.
Applying the above-factors, the courts have typically held that longer notice periods are warranted for:
- long-serving employees;
- older employees;
- employees in management, executive or highly-specialized positions;
- employees who will have difficulty finding comparable employment.
However, these factors are not exhaustive, and no single factor is determinative. The courts have held that these factors are not to be applied strictly, and that a court must assess all relevant factors on a case-by-case basis, while also looking at past court precedents, in order to determine an appropriate notice period.
Get Legal Advice About Termination of Employment in BC
It is clear from the information set out above that there are many variables to consider when dealing when an employee is dismissed from their job. Whether you are an employee who has been given notice of termination, or an employer considering whether to terminate an employee, your best course of action is to obtain employment law advice from a knowledgeable and experienced employment lawyer as early as possible in the process.