What to do if you’re being “quiet fired”

Rising interest rates, inflation, and media buzz about an impending recession causes anxiety for a lot of employees – and not just those who have been let go. We wrote a piece recently about employers “quiet firing” employees. This is where employers start treating an employee badly with the hope that the employee will walk away from the job on their own.

In this blog article, we talk about what you can do if you think you’re being quiet fired. We also talk about some other common issues that can arise for employees in tough economic times and some practical tips on how to negotiate them.

Management is taking away my duties or treating me badly

There are legal options for employees in these situations.

The first is constructive dismissal.  We write more about constructive dismissal here.  Constructive dismissal is basically when an employer breaks the employment contract in such a fundamental way that the employee can say that they’ve been let go.  If you’ve had core tasks removed from your job, or you’re a manager who’s no longer part of the decision-making process, you can argue that you’re no longer doing the job you were hired to do.  You may have a case for constructive dismissal, and sue for damages much in the same way you would if you’d been laid off.  In these sorts of cases, however, it’s critical that you see a lawyer. Every constructive dismissal case is different, and your chances of success really depend on exactly what’s happened and how and when you react to it.  Employees also have a “duty to mitigate,” which could mean you either should continue to work in your current job, or look for a new one.

If you think you’re being bullied and harassed by your manager in BC, you could also consider contacting WorkSafeBC.  You could make the claim to WorkSafeBC as an occupational health and safety issue, or make a claim for compensation – that is, get compensation from WorkSafeBC for a workplace injury if you’re diagnosed with a mental disorder as a result of bullying and harassment and miss time from work as a result.  Keep in mind, however, that these claims are generally difficult to make out at WorkSafeBC, especially if you’re alleging that you’re being harassed by a manager.  Generally speaking, managers are allowed to direct the workforce as they see fit, and, so as long as they’re doing so in a reasonable way, there won’t be a finding of bullying or harassment.   The key words to remember here are “humiliate,” “threaten,” or “embarrass.”  If your manager is doing any of these things to you, you may have a claim.  You will have a very difficult time showing bullying or harassment if you’re alleging the bullying and harassment is through incorrect performance reviews or a reduction in duties, nasty looks, or simply being ignored.

I’m being asked to do a different job, take a pay cut, or work more hours for the same pay

Sometimes, in tough economic times, an employee might be asked to do a completely different job than the one they were hired for.  You might be asked to work much more or take less pay.

Your employer has a general right to direct the workforce and decide on compensation, but there are limits. You can’t be forced to do a job that’s fundamentally different from the one you agreed to do in the first place, or take a big pay cut, or work a lot of extra hours for no compensation.  If this is the case, you could be looking at a case of constructive dismissal as described above  – and you should see a lawyer right away.

There are some legislative protections for employees who are being asked to work a lot more hours than before.  In BC, hours of work and overtime are covered by the Employment Standards Act. Those employees that are eligible for overtime must be paid overtime strictly under those rules, i.e. 1.5 or double pay for working over 8 hours in a day or 40 hours in a week.  There are also rules around how much time an employee needs between shifts.

While there are ways in which employers can ask employees to work for no overtime pay, such as time banks or averaging agreements, employers must follow these rules strictly.  This can mean getting the employee’s agreement to those arrangements in the first place.

Under the Employment Standards Act, managers, as well as many professionals, don’t qualify for overtime.  Even here, though, these individuals can’t be asked to work overtime in such a way that it’s unsafe.

What happens if I’m told I’m laid off and asked to sign a settlement agreement or “release?”

Don’t sign anything without talking to an employment lawyer.  You could be entitled to far more than what you’re being offered. Sometimes employers will give you with a short deadline to sign a settlement offer.  Almost all employers, however, will give you extra time to consider the offer if you ask for it.

Don’t let the potential cost of seeing a lawyer, or legal representation, prevent you from talking to a lawyer.  Your career is a big deal, and if you don’t talk to a lawyer you could be missing out on a significant settlement when you and your family need it the most.  We write more about that here.

And remember: even if you don’t sign a settlement agreement from the employer, you’re still owed the minimum severance for the length of service under employment standards legislation.  In BC, that’s the Employment Standards Act. In BC, an employer must pay you all of your wages, including outstanding vacation pay and severance pay for the length of service under the Employment Standards Act, within 48 hours of your termination.

Practical tips for employees who are worried about being laid off

• Your current employment contract may limit what you can do in your next job.  A couple of examples of this are “non-competition clauses” and “non-solicitation clauses.” Non-competition clauses try to prevent you from working in the same industry as your employer in a certain place for a certain amount of time.  Non-solicitation clauses try to prevent you from approaching your employer’s staff, suppliers, or customers for a certain amount of time.  If you have these kinds of limits in your employment contract, it’s important to ask a lawyer to take a look at them.  Courts have been clear that non-competition and non-solicitation clauses can’t be any more restrictive than what the employer needs to legitimately protect its business.  In other words, if those restrictive covenants go too far, or ask for too much, a court will say that you don’t have to follow them.

• Look at your current employment contract to see if there are termination provisions which tell you what you will be owed if you are terminated “without cause.”  If these provisions are enforceable – and you’ll need a lawyer to know for sure – it’s likely that amount is what you’ll be offered if you’re laid off for no reason. This can give you an idea of how much time you’ll have, in terms of notice or cash instead of notice, to find a new job.  If you don’t have a clause in your employment contract, an employment and labour lawyer can give you an idea of how much “common law reasonable notice” you might expect instead.

• It’s usually a lot easier to find a job when you already have a job.  If you think your job’s in danger, it’s not a bad idea to consider looking for a new one – or start the process of re-connecting with potential references you trust who doesn’t work for your current employer.

• To quote Warren Buffett, “you can always tell someone to go to hell tomorrow.” This advice applies especially to employment relationships. Always be respectful towards your employer. If you’re not unionized, your employer can basically fire you whenever it wants. The only exceptions to this are that the employer must give you enough notice (or pay in lieu of notice) and you can’t be fired for unlawful reasons (for example, for a ground protected under human rights legislation, or for exercising your occupational health and safety rights under the Workers Compensation Act for raising a safety concern).

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.

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