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What to do when you're fired, laid off, dismissed, harassed or discriminated against

There is little in life worse than loss of a job.  Worries over how you will pay your bills, what others will think of you, how you feel about yourself, all loom in your thoughts at such a time.

However, while an employer (other than one with a unionized workforce) can generally terminate the employment of any or all of its workers at any time, you as an employee do have rights.

For those who are unionized, their ally is their union.  See your union shop steward or representative. 

These comments are for those who are not unionized.

Types of Dismissal:

There are two types of situations into which a termination of employment can fall.  One is “dismissal for legal cause”.  This arises where the conduct of the employee has given the employer a legal reason to terminate immediately, such as theft or other dishonesty, insubordination, chronic absence from work without legitimate reason or intoxication at work (although alcoholics must first be given an opportunity to rehabilitate themselves).  In this situation the employee can be let go immediately and the only right is to be paid to the last day worked plus any benefits and holiday pay owing.

The other situation is generally called “dismissal without legal cause”.  It is also sometimes called “wrongful dismissal”.  It encompasses all situations where the employee is let go, not due to any misconduct, but for any cause (such as “downsizing” or restructuring).  It also includes cases where an employer substantially changes the nature of the employee’s job or demotes the employee (often called “constructive dismissal”). 

In those cases the employer is obliged to do one of two things:  To give the employee adequate working notice of termination of employment (that is, make the termination date sufficiently in the future and to continue to employ the worker until that date) or alternatively, to let the employee go immediately, but pay the lump sum monetary equivalent of the proper notice.  So, for example, if the employee is legally entitled to six month’s notice, then the employer must keep him/her on for that six months or else pay a lump sum equivalent in wages and benefits and holiday pay if the employee is let go immediately.

Under the Employment Standards Act of BC, minimum amounts of notice are required.  This law applies to employees other than those whose jobs are covered by the federal government under the Canada Labour Code (such as workers employed by banks, airports, railways, shipping and trucking companies and federal civil servants).  The Canada Labour Code also gives minimum notice requirements.  But those minimums are not all that is required of an employer.  Judges in many years’ worth of wrongful dismissal court cases have worked out what constitutes “reasonable notice of termination”.  What is reasonable depends on several factors, including length of service, the nature of the work, where the employee was in the company’s chain of command, age, experience, training, qualifications, availability of similar employment and whether the employee was “lured” to the job and quit other employment to take it.

As a rough rule of thumb is that you can expect about one month’s notice for every year worked to a maximum of around 24 months. To get more than 12 months, you generally need to be a senior employee. The oldest, most senior employees and those who’ve worked the longest may get up to 24 months. The most notice so far given in Canada has been 30 months, awarded to a 53-year-old former CEO of an Ontario hospital with 35 years’ experience.

There are some reasons why an employer cannot terminate your employment.  They include your race, religion and sexual orientation.  Termination for those reasons is discrimination and a violation of human rights laws.  It can also be unlawful discrimination let go an employee who becomes disabled.  Employers whose employees become disabled have a legal obligation to “accommodate” the disabled employee, so long as the level of the required accommodation does not create an “undue hardship” to the employer or potentially endanger others. 

An employer also cannot avoid having to give you reasonable notice or compensation in lieu of notice by making your job so intolerable that you have to quit.  That, along with demotion or substantially changing your job duties, is called “constructive dismissal”-terminating your employment by some other way than directly firing you.

Do you have a right to know the reason for your dismissal?  If you are dismissed for legal cause, the answer is “yes”.  If you are not dismissed for legal cause but for any other reason (other than discriminatory ground like race or religion) then the answer is “no”, so long as you are paid the proper compensation in lieu of notice.

What about references?  Can you demand one?  Again, the answer is “no”.  It is up to the employer.  Many times, where the employee is let go for financial or other causes, the employer is happy to give a reference.  But if you have had a difficult relationship with your employer or were constructively dismissed, the employer can choose to say nothing.  Frankly, that is probably best, as prospective new employers often call and check on references.  In fact, former employers have to be careful about what they say, as a former employer can be sued for “bad faith damages” in addition to compensation in lieu of notice if, in the firing process or after, the employer causes humiliation, embarrassment, lowered self-esteem or makes unjustified negative comments about the employee to others, particularly potential employers.

This is just a brief overview of the laws related to employment.  Each person’s case is different and so, when your employment is terminated, you should get legal advice from a lawyer knowledgeable in this area, so that you do know your rights and get the compensation to which you are entitled.