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employment law

Focus Law provides legal advice on the various issues that arise at the start, during, or end of the employment relationship. The legal services offered include:

Click on the subjects below are more information on:

  1. Employment Standards Act

    The Employment Standards Act and the Regulations govern working standards in British Columbia. For example, the Employment Standards Act regulates overtime pay, and vacation entitlement, among other things.

    The Employment Standards Act sets out minimum employment standards with respect to working conditions and wages in British Columbia. For example the Employment Standards Act sets out the minimum amount required for written notice of termination and/or compensation (the "notice period") an employee is entitled to upon termination of employment (where there is no cause for termination). It is therefore critical to determine if an employee is entitled to a notice period longer than the minimum notice period provided by the Employment Standards Act when making, negotiating or accepting a severance offer.

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  2. Employment Standards Branch

    The Employment Standards Branch ("ESB") is the governmental department that administers the Employment Standards Act. An employee or former employee who has a complaint about an employer's failure to meet its obligations under the Employment Standards Act may bring a written complaint to the ESB.

    1. Steps to bringing a complaint

      1. Employment Standards Branch ("ESB") Self-Help Kit

        Before filing a complaint with the ESB, an employee must complete the "Self-Help" steps in an effort to resolve the workplace dispute. The "Self-Help" procedures must be followed except in certain circumstances such as:

        • the complainant is under the age of 19;
        • the complaint is related to a leave provision of the Employment Standards Act;
        • the complainant is a farm worker, textile or garment worker, or domestic;
        • the complainant has significant language or comprehension difficulties; or
        • the complainant is able to demonstrate that he/she has already sent a letter to the employer identifying the issue or dispute and has requested a resolution.

      2. The complaint

        A complainant may file a complaint with the Employment Standards Branch ("ESB") if he/she is unable to obtain a resolution after using the "Self-Help" procedures or if the exceptions to using the "Self-Help" process are met.

        A complaint is brought by completing the appropriate form and submitting that form to the ESB. Complaint forms are available online at the ESB website.

    2. Limitation Period to file claim

      There is a six month limitation period to file a complaint with the Employment Standards Branch ("ESB"). This means that an employee must file his/her complaint within six months of the alleged contravention of the Employment Standards Act or the last day of employment if the employee was terminated, whichever is later. If the complaint is filed outside of the six month period, the complaint may be refused by the ESB.

    3. Mediation

      A mediation session is conducted by an Employment Standards Branch ("ESB") officer before a complaint proceeds to an adjudication hearing. The mediation session is an informal meeting between the employer and employee conducted by an ESB officer in an effort to resolve the complaint. If the mediation session is successful, a settlement agreement will be entered into between the employer and employee. A settlement agreement is binding on the parties. If the terms of the settlement agreement are not carried out, it may be filed in the Supreme Court of British Columbia and enforced as a judgment of the court.

    4. Adjudication Hearing

      A complaint will proceed to a hearing if it is not resolved through mediation. A hearing requires the employee and employer to present evidence under oath on the issues that led to the complaint. Each party has the right to cross-examine the other party or other witnesses called by the other party.

      The adjudicating Employment Standards Branch officer will issue a written decision called a "Determination" after the hearing. The determination will set out how the complaint is to be resolved and whether the complaint is resolved in favour of the employer or employee.

    5. Appeals

      An employee or employer may appeal a determination to the Employment Standards Tribunal. An appeal must be brought within 30 days after the date of service of the determination if served by registered mail or 21 days after the date of service of the determination if served in person, electronically or by fax. It is important to bring an appeal within the time limits prescribed by the Employment Standards Tribunal Rules of Practice and Procedure as the Tribunal may dismiss an appeal if the appeal is filed late.

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  3. Hiring an employee

    A contract of employment may be in written or oral form or contain elements of both forms.

    Reasons to have a written contract of employment:

    • eliminate ambiguity about the terms of employment;
    • specify if the employee is subject to a probationary period;
    • to specify the notice period or severance entitlement upon termination of employment;
    • clarify if the employee is an independent contractor or an "employee at will";
    • set out non-competition and/or confidentiality clauses;
    • set out the employee's job description.

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  4. Termination of Employment

    1. Information for Employers

      1. Termination where there is no cause

        When an employer is terminating an employee in circumstances where there is no cause, the employer has two options:

        1. provide the employee with reasonable pay in lieu of notice; or
        2. require the employee to continue working through the appropriate notice period.

        Reasonable pay in lieu of notice or the appropriate notice period is determined on a case by case basis and after considering factors such as:

        • the employee's length of service;
        • the employee's age;
        • the availability of similar employment;
        • the employee's work experience;
        • the qualifications of the employee.

      2. Termination for Cause

        An employer can dismiss an employee for cause where the employee is guilty of serious misconduct, wilful disobedience in a significant matter or consistently neglects his or her duty.

        If there is cause to terminate an employee, the employer can terminate the employee without notice. This means that the employee's employment may be terminated without notice or monetary compensation in lieu of notice.

        An employer should not rely on one minor mistake or a minor act of misconduct to establish cause. Minor mistakes generally will not amount to cause unless it is so serious as to cause prejudice to an employer's business.

        Whatever the circumstances, all terminations must be handled professionally even where there is cause. Conduct the termination in private. Do not allege cause for termination if cause does not exist.

        Employers owe an employee a duty of good faith. The principle of good faith extends to the manner in which an employee is terminated; thus the failure to act in good faith when terminating employment may result in increased damages for the employee, particularly where the employee has suffered physical or mental distress as a result of the manner in which his/her employment was terminated.

      3. Documenting cause

        There are a number of things that an employer can do to document cause:

        • warn an underperforming employee about deficiencies in his/her performance and provide training and opportunities for improvement;
        • keep a written record of all performance deficiencies, warnings and opportunities for improvement;
        • have written policies clearly identifying the employees' duties and the employer's expectations;
        • implement a system of performance reviews; and
        • implement and enforce a policy of progressive discipline.

      4. Constructive Dismissal

        The acts of an employer may result in an employee being constructively dismissed from his/her employment. Constructive dismissal arises in circumstances where the unilateral acts of the employer have the effect of altering the terms and conditions of the employment agreement to the extent that the employee is entitled to treat the employer's conduct as a termination.

        Whether a constructive dismissal has occurred depends on the circumstances of each particular case. Acts by an employer that may lead to a constructive dismissal:

        • significant changes to an employees' job responsibilities, compensation, working conditions;
        • resignation obtained from an employee under circumstances amounting to duress;
        • harassment or unfair treatment of an employee; for example violations of the Human Rights Code would almost certainly be regarded as circumstances giving rise to a constructive dismissal.

      5. Probationary Employees

        If an employee is hired on a probationary basis, make it clear that the offer of employment made to the employee is subject to a probation period. An employer should consider whether the employee is to be permitted all, or a substantial part, of the probationary period to demonstrate his or her suitability for the job. An employer may want to reserve the right to dismiss an employee during the probationary period without notice or pay in lieu or notice subject to having just cause for dismissal.

      6. Notice Period

        Unless an employer has cause to terminate, reasonable notice of termination must be given to the employee. The purpose of the reasonable notice period is to provide the employee a period of time to find similar alternate employment and to ease the financial loss caused by the termination. An employer may give an employee reasonable notice of termination in two manners: (1) working notice or (2) a monetary equivalent of the reasonable notice period.

        The Employment Standards Act sets out the minimum notice period required by law. Long term or senior employee(s) may be entitled to more than the notice period set out in the Employment Standards Act.

        An employment agreement setting out terms governing termination entitlements will also impact the determination of the notice period. An employment agreement may limit an employee's entitlement to severance at termination of employment.

        Factors that are considered when determining the notice period:

        • the employee's length of service;
        • the employee's age;
        • the availability of similar employment;
        • the employee's work experience;
        • the qualifications of the employee.

    2. Information for Employees

      1. Notice Period

        Unless an employer has cause to terminate, reasonable notice of termination must be given to an employee. An employer may give an employee reasonable notice of termination in two manners: (1) working notice or (2) a monetary equivalent of the reasonable notice period.

        The Employment Standards Act sets out the minimum notice period required by law. Long term or senior employee(s) may be entitled to more than the notice period set out in the Employment Standards Act; however, this may be subject to an employment agreement limiting entitlement to severance.

        Factors that are considered when determining the notice period:

        • the employee's length of service;
        • the employee's age;
        • the availability of similar employment;
        • the employee's work experience;
        • the qualifications of the employee.

      2. Duty to Mitigate

        • Rationale for the duty to mitigate

          An employee who has been wrongfully dismissed has a duty to mitigate his or her damages. The duty to mitigate is not a duty owed to the former employer but a duty that the wrongfully dismissed employee owes to him or herself: Forshaw v. Aluminex Extrusions Ltd., 1989 CanLII 234 (BC C.A.)

          Mitigation means that an employee must take reasonable steps to acquire alternative employment similar in status, salary and of a comparable nature to his or her former position. The duty to take reasonable steps to mitigate damages in a wrongful dismissal situation does not require the employee to accept just any job that presents itself. A dismissed employee is obligated only to take reasonable steps to find comparable employment and is not under any obligation to accept a position that is not comparable in nature, status, and pay.

        • Successful mitigation

          The effect of a successful mitigation is that any losses suffered by the employee may be minimized or eliminated. Losses resulting from the wrongful dismissal may be minimized or eliminated because any salary or benefits that the dismissed employee earns in his/her new job during the notice period will be deducted from the damages that may be owed by the former employer.

        • Consequences for the failure to mitigate

          There are consequences for an employee who fails to take reasonable steps to acquire alternative employment. If the court determines that an employee has failed to take reasonable and adequate steps to find comparable employment, damages awarded for the dismissal will be reduced. The amount of reduction in damages awarded will depend on the facts of each particular case.

        • Demonstrating a failure to mitigate

          The employer has the onus of proving that the employee has failed to mitigate his/her damages. This means that the employer has to bring evidence to court demonstrating that the employee has not made a reasonable effort to find comparable alternative employment, and that the employee could have obtained comparable employment had the employee taken reasonable steps to do so.

        • Keeping records of job search efforts

          As an employee, you should keep detailed records of all your job search efforts, including keeping a diary or record of job search activities, print outs of postings on job search websites or newspaper advertisements, and a copy of applications and responses.

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Page last updated on: July 27, 2011.

Disclaimer - The legal information on this website provides information on specific areas of the law as applicable in the Province of British Columbia. Therefore, the information may not be appropriate or applicable to your particular case or the jurisdiction that you reside in. You should first obtain legal advice before relying on or acting on any information contained on this website or linked website(s). By accessing this website, you unconditionally accept this website's terms of use.