Fired? Terminated? Quit? What to do when your employment ends
The end of an employment relationship can be an overwhelming experience. Whether terminated without cause, for just cause, or constructively, or whether you resigned, it’s important to understand your legal rights and entitlements upon the conclusion of your employment.
Termination Without Cause
Although a common misconception, “without cause” does not mean that there was no reason for an employee to be let go. In fact, situations like company restructuring or cost cutting could constitute termination without cause. Rather, a without cause termination means that the employee has not engaged in conduct that provides the employer just cause for the dismissal. In this case, the employee is still entitled to notice or severance pay, and the issue that most commonly arises is how much.
In British Columbia, employees who are terminated without cause are entitled (at a minimum unless they are exempt) to statutory notice, pay in lieu of notice (or a combination of both) under to Part 8 (specifically s.63) of the BC Employment Standards Act, RSBC 1996, c 113 (the “ESA”). That said, if an employee’s employment agreement does not clearly and specifically limit the employee’s entitlements to the minimums of the ESA, employees are generally entitled to reasonable notice or pay in lieu of notice under the common law (which is the body of law that comes from the decisions of the courts).
Unlike statutory notice under the ESA which is based solely on the length of an employee’s employment, common law notice takes into consideration factors such as the employee’s age, position, length of employment, and the availability of comparable employment taking into account their skills, education, and experience. Entitlements under the common law are generally far greater than under the ESA. However, common law comes with a “duty to mitigate” or the duty to take reasonable steps to minimize your damages by seeking comparable re-employment.
Please refer to our previous blog regarding terminations without cause for more information.
Termination for Just Cause
Unfortunately, termination for just cause is what usually comes to mind when people use the term “fired.” However, just cause is difficult to establish and is far less frequent. Just cause refers to a situation where an employer has valid and legal reasons to terminate an employee’s employment without providing any notice or severance pay. Just cause can include serious misconduct, such as theft, fraud, or workplace violence. Severe performance issues can also lead to just cause termination; however, these tend to be more difficult for employers to establish. A Court will be looking for evidence from the employer that they clearly communicated their expectations for employee behaviour in the workplace, notified the employee that they were not meeting those expectations (through a performance review for example), and provided the employee with an opportunity to correct their behaviour through progressive discipline.
Remember, just because an employer alleges just cause when they dismiss you does not mean there is actually just cause! If you think you were wrongfully dismissed, it is important to obtain a professional opinion.
Constructive Dismissal
Constructive dismissal is where an employer changes a fundamental term of employment without notice or the employee’s consent. This can occur, for example, where an employer makes a significant reduction in salary, commissions, bonuses, and/or benefits. A significant change in job title and/or work duties can sometimes result in constructive dismissal, as can harassment in the workplace.
If you feel that you have been wronged in the workplace, you have several options: 1) You can accept the new terms of employment; 2) You can try having a conversation with your employer about your concerns with the new employment terms; or 3) You can assert constructive dismissal. Before doing anything, however, it is important that you seek advice so you are not deemed to be resigning or voluntarily quitting. For example, unless you have chosen to accept the new terms, it is essential that you actively protest the changes and document your efforts, otherwise you risk a finding that you agreed to the changes.
As well, mitigating financial losses in constructive dismissal cases is critical. This includes accepting an alternative position from your employer or taking reasonable steps to seek new employment promptly to minimize the period without income.
We encourage you to refer to our previous blog regarding constructive dismissal for more information.
Resignation
Maybe you have decided to quit your job.
One of the most frequently asked questions in this situation is how much notice an employee is required to provide their employer. Although the general assumption is that two weeks is sufficient, that may not always be correct. As well, if the employer ends the notice period early, they are required to pay out the remaining notice to the employee. For more information about this, please refer to our previous blog post regarding resignation notice.
Another important consideration is that when an employee quits their job, it may affect their eligibility for federal government benefits. As such, employees who require to take time off to deal with illness or other life situations should consider whether they are eligible for a job-protected leave of absence instead.
Know Your Rights and Responsibilities
If your employment has recently ended and you have questions about your entitlements, it’s important to get advice. Your rights are important!
If you need any assistance or want to discuss this issue, please reach out to us. We are here to help!
