Employment law 101 – Fired. Laid off. Terminated.
Whatever you call it, losing your job can be devastating. Your job often isn’t only how you make a living, but a big part of who you are.
So, if you’ve been fired, what do you do?
You should talk to a lawyer before you agree to anything. This is especially true if you’d been with your employer for a long time, or you feel you’ve been mistreated or discriminated against. You can set up a free, half-hour meeting with a Labour Rights Law lawyer here.
In the meantime, this article sets out some of the legal issues that a lawyer will look at for you. All of these issues help a lawyer to understand whether you’re owed compensation, or, in some cases, even getting your job back.
A) Are you a unionized employee?
If you’re a unionized employee, you’re covered by a collective agreement. The collective agreement sets out many of the rules around your job, including details of what the union can do representing you with your employer and what you’re entitled to if you’re fired or laid off.
Because you’re a unionized employee, this article will not help you understand what you may be entitled to you if you’ve lost your job. You can find out more about the law around a unionized workplace here.
B) Were you fired for “just cause?”
Your employer can fire you without pay or advance notice if they have “just cause” to end your employment. In other words, if you do something so bad that it breaks the trust your employer has in you, your employer may be able to fire you without paying you.
But just because your employer says you were fired for a good reason, or just cause, doesn’t mean that you’re not owed any money. It’s actually pretty hard for an employer to prove they’ve fired someone for just cause. If you’ve done something really bad in your job, like steal or lie, then an employer will usually be able to fire you for just cause and not owe you anything.
But if you’ve been fired for something like being late, or not doing a good enough job, it’s a lot harder for your employer to prove that you were fired for just cause. In order for your employer to fire you for just cause for something less than stealing or lying, an employer usually has to warn you, often more than once, before doing so.
C) Did you have an employment contract that says what you’re owed if you’re fired?
If you have an employment contract that says what you’re owed when you’re fired without cause, then that’s usually what you’re owed. For example, employment contracts will often say that you’re not owed anything more than what you’re entitled to under employment standards legislation. In BC, the employment standards legislation is called the Employment Standards Act.
That said, you can’t be paid less than what you’re owed under employment standards legislation. In BC, for example, you’d be owed two weeks of wages (or two weeks’ advance notice) if you’ve worked for a year for your employer, and, for every year after that, an additional week of wages up to a maximum of eight weeks. You can learn more about termination pay under employment standards here.
If you don’t have an employment contract, or your employment contract doesn’t say what happens when you’re fired, then you’re owed “common law reasonable notice” when you’re fired or laid off.
Common law notice end up being equal to months and months of wages in some cases. What you’re owed for common law notice is basically calculated by figuring out how long someone like you would take to find a similar position to the job you were just fired from. Factors that are looked at include what your responsibilities were, how long you were in your job, and how old you are. The harder it would be for you to find a similar job, generally the more reasonable notice you’re owed.
An employer can choose to give you common law reasonable notice in working notice or instead just pay your wages for that time instead – or a combination of both.
D) Were you discriminated against?
If you were fired or treated badly because of a “prohibited ground of discrimination” under human rights law, you can be awarded money – or even your job back. Not all discrimination is against Canadian law. “Prohibited grounds of discrimination” in Canadian laws include discrimination because of your colour, race, ancestry, sex, disability, or family status. You can find all the prohibited grounds protected against in employment in BC in section 13 of the Human Rights Code, and learn more about human rights generally here.
You can also be discriminated against under the law if you were fired for exercising your rights under the Workers Compensation Act or its regulations. If that’s the case, you can make a discriminatory action complaint at WorkSafeBC. This would include, for example, the right to refuse unsafe work or calling WorkSafeBC to report an unsafe workplace. You may be awarded lost wages, or even get your job back. You can learn more about discriminatory action complaints at WorkSafeBC’s website.
E) Your job search, and your new job, can change how much you may be awarded
If you’ve been fired or laid off and you’re owed common law reasonable notice, you have a duty to look for another job. This is called “mitigating your damages.” If you don’t, and your case goes to court, the court may decide that you’re not owed anything.
However, any new position that you start working in has to provide you with equal or similar pay and benefits. If you get a new position that gives you pay and benefits that’s much less than what you were earning in your old job, the court may still decide you’re not owed any compensation because you’ve not mitigated your damages.
If you do get another job, any earnings you make in that job would be deducted from what you are awarded in court. For example, if it’s found that you’re owed 10 months’ wages in reasonable notice, but you get a full-time job three months after getting fired, your new wages would be deducted from the 10 months of wages you’re owed.
This is a very brief overview of Employment law 101; some of the most important issues you should consider when you are fired. There are also many more. It’s always best to consult a lawyer to ensure you’re fully informed when you’re making decisions.DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice. To provide legal advice on your problem, a lawyer must first understand your specific situation.
To book a consultation, please give us a call toll-free 1 (877) 708-8350 or locally (604) 475-0041. You can also book a consultation online here.