Losing your job can leave you with questions about your income, your rights, and what to do next. Here are nine things employees should know about termination in British Columbia. This article focuses on non-union employees covered by BC employment law; different rules apply to federally regulated and unionized workplaces.
1. You may be entitled to notice or pay instead of notice.
When an employer dismisses you without cause, you will generally be entitled to advance notice, pay instead of notice, or a combination. Your employment contract and the common law may provide rights beyond the statutory minimum.
2. The ESA minimum increases with your length of service.
The Employment Standards Act (ESA), section 63, sets these individual termination minimums, subject to exceptions:
| Consecutive employment | Minimum written notice, pay instead, or a combination |
|---|---|
| Less than 3 months | None under section 63 |
| 3 months to less than 12 months | 1 week |
| 12 months to less than 3 years | 2 weeks |
| 3 years to less than 4 years | 3 weeks |
| 4 years to less than 5 years | 4 weeks |
| 5 years to less than 6 years | 5 weeks |
| 6 years to less than 7 years | 6 weeks |
| 7 years to less than 8 years | 7 weeks |
| 8 years or more | 8 weeks |
These are minimums, not a cap on your total entitlement. Exceptions include some fixed-term and construction employment.
3. An allegation of just cause does not settle the issue.
An employer may dismiss an employee for just cause without notice or pay instead, but the legal threshold is high. Calling conduct “just cause” in a termination letter does not make it so. Poor performance, a mistake, or a workplace disagreement will not automatically justify dismissal without notice. The circumstances and the employer’s response matter.
4. Your contract may not limit you to the minimum.
Employees may be entitled to reasonable notice under the common law, which can substantially exceed the ESA minimum. The assessment considers factors such as length of service, age, the nature of the work, and the availability of comparable employment.
A contract can limit that entitlement, but not every clause that refers to ESA minimums is binding. The wording must clearly limit common law rights and comply with the ESA. A clause that permits less than the statutory minimum may be unenforceable. How and when the agreement was made can also affect whether it binds you. Do not assume that signing a contract means its termination clause is valid.
5. A termination offer can often be negotiated, but your statutory entitlement is already yours.
An initial offer may be less than your full legal entitlement. Before negotiating, distinguish what your employer already owes from what it offers in exchange for a settlement.
Your employer cannot make payment of ESA minimums you are owed conditional on signing a release. You cannot trade away those minimum rights: section 4 of the ESA makes an agreement to waive them ineffective.
That is why employers commonly offer additional money in exchange for a release. In return, you agree to give up claims that could be worth more. An offer above the statutory minimum is not necessarily a fair settlement of your full entitlement.
6. Review a release before you sign.
A release can prevent you from pursuing claims arising from your employment and dismissal. Read the offer, ask for time to obtain advice, and understand what you will give up before accepting. An employer’s acceptance deadline does not, by itself, erase your legal rights if you decline the offer.
7. Check your final pay.
Check that your employer pays outstanding wages, vacation pay, and other earned compensation. Review any bonus, commission, and benefit entitlements as well, including what may be owed for the applicable notice period.
8. Group terminations can trigger additional rights.
Subject to exceptions, terminating 50 or more employees at one location within two months triggers additional ESA group termination obligations. These operate alongside individual termination rights.
9. Proper notice does not make every dismissal lawful.
If your employer fails to provide the notice or compensation you are entitled to, you may have a wrongful dismissal claim. But even when an employer gives proper notice or pay instead, the reason for dismissal can still make it unlawful.
For example, a dismissal may violate the BC Human Rights Code if a protected characteristic, such as disability, race, sex, age, religion, or family status, was a factor in the decision and the employer cannot legally justify its conduct. An employer cannot simply pay notice to avoid its duty to accommodate a disability or another protected need to the point of undue hardship.
An employer also cannot lawfully dismiss you in retaliation for raising an occupational health or safety concern or exercising protected safety rights. That may be a prohibited action under the Workers Compensation Act. These protections concern health and safety issues, rather than every workplace disagreement.
Other protections apply to pregnancy, statutory leaves, and retaliation for exercising employment standards rights. Paying notice does not excuse a breach of those protections.
These issues may involve separate claims before a court, the Human Rights Tribunal, WorkSafeBC, or the Employment Standards Branch. The available remedies and deadlines differ, so obtain advice about the reason for your dismissal as well as the amount offered.
Before accepting a termination package, understand what your employer owes you and what it asks you to give up. Reviewing your contract, termination letter, and proposed release can help you make an informed decision.
