It’s an unfortunate but sometimes unavoidable situation: you have a worker who isn’t working out, and they need to go.
To carry out a termination of employment, there are certain requirements that must be met, as laid out in the Employment Standards Act. Here are three of the most important points every employer should know before letting a worker go.
Hiring a new worker is always a gamble. It can take some time to figure out if everything and everyone will gel. Employment contracts often have a probation period of three months, during which time no cause is needed for termination of employment—though the termination must still be in good faith.
Probation periods can be longer, but be mindful that British Columbia law still requires you, the employer, to pay at least one week’s wages if the termination happens after that three-month mark.
Wrongful dismissal doesn’t mean just “termination without cause”—it means not giving sufficient notice. Put simply, the longer an employee has been with you, the more notice of termination is needed.
However, this can be more complicated than it sounds, especially as employer-worker relationships have become increasingly complex. For instance, there are cases where an “independent contractor” can become an “employee” in the eyes of the law, meaning terminating employment without notice constitutes wrongful dismissal. If you have any uncertainties, seek legal advice.
No surprises here: if you’re going to let an employee go, you need to have a reason—a good one – and you need to be up front with the employee about why they are being terminated. An employee will be able to seek bad faith damages if, for example, the termination of employment was for malicious reasons or if the terms of a layoff were misrepresented in any way.
In short, any reasons for termination of employment determined to be untruthful, misleading, or insensitive constitute bad faith. When complicated situations arise, obtaining legal counsel before letting the worker go is the safest option for you and your company.
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