Giovanna Di Sauro

Although according to some financial analysts Canada seems to be set for a speedier recovery from the current global economic turmoil, job market figures across Canada, and more particularly in BC, are far from encouraging. The most recent issue of Business in Vancouver reports that unemployment is hitting double digits in some part of BC – such as the Okanagan and the Cariboo. In April, job openings “grew in tandem with the size of the labour force”, keeping the unemployment rate at 7.4% for the whole of British Columbia. And the number of service sector jobs remained pretty much unchanged.

What could this mean? If we make the safe assumption that most job losses in the Cariboo and Okanagan were due to the resource sector, we can still somewhat guess that layoffs and hirings in the service sector (concentrated in the Lower Mainland) are still going on at the same rate. Which means that the time of the layoffs is far from gone.

Most workers are not going to be prepared for a layoff. Companies are quick at laying off, and hardly ever warn their workforce to avoid losing productivity and deter costly personal revenges (which often result in loss of confidential data). That means that a layoff will most probably come quickly, and you need to know your rights when it does.

In this post, I am going to pick a few typical layoff examples, and explain how the BC Employment Standards Act applies to them. Keep in mind that I am not a lawyer, so if you are already in a “sticky” situation, make sure to consult a professional about your specific case.

Let’s start with this example. A company hires a fresh graduate to work for them, knowing full well that this person has just obtained a bachelor’s degree in the previous summer. After some pushing and pulling, this graduate finally manages to obtain a job contract. The contract states that the probation period for the job is 6 months in length from the start of employment. In the meantime, more and more layoffs are seen in BC, and the company’s boss decides to call in the graduate for a meeting. He tells the graduate that he is not satisfied with the quality of the work he has seen, and that he is looking for someone with better qualifications to take over the  job. He then decides to fire the fresh graduate – a few days after the end of the probation period.

Is the graduate entitled to severance pay? Is the boss’ motivation for firing considered “just cause”? If you are the graduate in question, what are your rights?

First of all, we need to consider that, ultimately, this employee was fired. It does not matter whether the actual words (”You’re fired!”) were pronounced, as the Act recognizes a variety of actions on the part of the employer as firings.

Was this termination motivated by a “just cause”? To some of you, it might look like this might be true in this case – “the employee could not perform his/her duties, and was rightly fired”. However, the legal definition of “just cause” is quite stringent. In fact, you can consider yourself fired because of a “just cause” if:

• use drugs or alcohol that interfere with your job performance
• ignore a strict rule of “no alcohol during work hours”
• intentionally disobey your boss
• consistently refuse to follow a clearly defined chain of authority in a tightly-knit business
• are disloyal to your employer or put yourself in a conflict of interest; for example, you set up a business to compete directly with your employer
• ignore a clear workplace policy, procedure, or rule
• are dishonest about something important

The fact that the employer – who, remember, is the one who chose to hire this person in the first place! – thinks an employee is not performing well enough is not considered “just cause”. If someone is let go without a “just cause”, then this person is entitled to notice and pay. In fact, the Employment Standards Act says that

• If employment is terminated
  18 (1) An employer must pay all wages owing to an employee within 48 hours after the employer terminates the employment.
  (2) An employer must pay all wages owing to an employee within 6 days after the employee terminates the employment.
• Banking of overtime wages
  42 (5) On termination of employment or on receiving the employee’s written request to close the time bank, the employer must pay the employee any amount credited to the time bank.
• Vacation pay
  58 (3) Any vacation pay an employee is entitled to when the employment terminates must be paid to the employee at the time set by section 18 for paying wages.

Got it? This employee is entitled to vacation pay, wages owing and vacation pay. But is the employee also entitled to severance pay? This depends on whether appropriate notice was given, and the length of employment. In this case, it is ambiguous whether sufficient notice was given – the employee was made free to go pretty much right away. That might mean that the employee is entitled to severance pay according to section 63 (1).

Liability resulting from length of service
63 (1) After 3 consecutive months of employment, the employer becomes liable to pay an employee an amount equal to one week’s wages as compensation for length of service.
(2) The employer’s liability for compensation for length of service increases as follows:
(a) after 12 consecutive months of employment, to an amount equal to 2 weeks’ wages;
(b) after 3 consecutive years of employment, to an amount equal to 3 weeks’ wages plus one additional week’s wages for each additional year of employment, to a maximum of 8 weeks’ wages.
(3) The liability is deemed to be discharged if the employee
(a) is given written notice of termination as follows:
(i) one week’s notice after 3 consecutive months of employment;
(ii) 2 weeks’ notice after 12 consecutive months of employment;
(iii) 3 weeks’ notice after 3 consecutive years of employment, plus one additional week for each additional year of employment, to a maximum of 8 weeks’ notice;
(b) is given a combination of written notice under subsection (3) (a) and money equivalent to the amount the employer is liable to pay, or
(c) terminates the employment, retires from employment, or is dismissed for just cause.

In case the employer refuses to pay back the employee’s unpaid wages, vacation pay, overtime banked hours, and the due severance pay (this last only in case proper notice was not provided), he or she will be in contravention of the Employment Standards Act.

If you think you were victim of an employment standards violation, read up some relevant sections in the Act itself (Part 10 — Complaints, Investigations and Determinations and Part 11 — Enforcement), contact the closest office of the Employment Standards Branch, and/or consult a lawyer.

**Any reference to actual events is purely a coincidence. This article contains no names, and the cases here are just examples. Last but not least, I am not a lawyer – make sure to consult a professional about your specific case… and if you are a victim of an employment standards violation, fight back for your sake and ours. You should also consult the Employment Standards Branch in your area for guidance and reliable information.**

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