Clark Wilson

BC Employment Law FAQs

Clark Wilson's Labour and Employment Practice group provides practical, sophisticated advice to both Employers and Employees. Members of our Practice Group have developed this series of frequently asked questions and answers regarding BC Labour & Employment law, based on the queries they receive most often. By necessity, the answers are wrongful-termination in nature. Specific facts may alter the answers a lawyer would give you, and so you are encouraged to seek legal advice if you have further questions.

Should you wish to retain us to provide specific legal advice on any labour and employment matter, please contact Heather Hettiarachchi.

Disclaimer: This FAQ section is for informational purposes only, for the convenience of our visitors. While these questions and answers are about legal issues, they are not a substitute for consultation with a lawyer, and should not be relied on as a basis for any legal decision. As with anything of a legal nature, different circumstances can create different results.

BC Employment Law FAQ Categories

Click on a category below to review the related questions, or scroll down to browse all the questions.

BC Employment Standards

Which statute applies to determine minimum requirements for notice or severance?
If you are an employer in B.C., for most occupations the applicable legislation is the British Columbia Employment Standards Act. If, however, you are a federally regulated employer, such as a bank, airport, railway, shipping and trucking company, the Canada Labour Code applies.

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Are the notice and severance provisions in the Employment Standards Act all that an employer is required to give an employee when firing them without cause?
No. The common law often requires a longer notice period than is provided in the Employment Standards Act. The amount of notice an employer might be required to give at common law is "reasonable notice." Reasonableness depends on several factors including the character and length of employment, the employee's age, experience, training and qualifications, and the availability of similar employment.

If an employer has a written contract with their employee that deals with notice and/or severance, then the provisions in the contract will determine how much notice the employer is required to give the employee they fire without cause, so long as it is not less that what they would be required to give under the Employment Standards Act. Employers are not allowed to contract out of the minimum notice provisions set out in the Employment Standards Act. If the contractual provisions dealing with notice and severance are not worded properly, that entire section of the contract could be void, in which case the common law rules for calculating notice would apply.

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I have just hired a new employee and I put them on probation for 3 months. What is the significance of the probationary period?
The probationary period is a defined time period (often 3 months, but it can be longer or shorter) established at the start of your new employee's employment which is intended to give you sufficient time to determine that employee's suitability for the job. If, during this period, you determine that the new employee is not suitable for the position, you may be able to terminate your employment without cause and without any obligation to give notice or severance, as long as there was a clear understanding that you could do this during the probation, and the assessment of the employee's suitability is done on a fair and reasonable basis and was not done in bad faith or for an improper motive. In all cases, if a probation period lasts longer than 3 months and an employee is terminated without cause, you are still required to give them the minimum notice set out under the Employment Standards Act.

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If a company lays off 50 employees or more, does it have any extra obligations to its former employees?
Under the Employment Standards Act, if 50 or more employees will be laid off within any 2 month period, the employer must provide a minimum of 8 weeks' written notice to each employee who will be affected, as well as to any trade union who may be certified to represent the employees or recognized by the employer as the bargaining agent of any affected employees, and the Minister of Labour and Citizens' Services. Written notice must be provided before the effective date of the first termination. Such notice is in addition to any notice, or pay in lieu of notice, that the employee is otherwise entitled to under the Employment Standards Act, or by contract, or pursuant to the common law.

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What minimum standards does the Employment Standards Act set for notice or pay in lieu of notice of termination?
The Employment Standards Act states that if you terminate an employee without cause, you are required to give them either one week’s notice, or pay in lieu of notice (or a combination of both) for employment of between 3 and 12 months in duration. For periods of service in excess of 12 months, you must compensate your employee as follows:
  1. after 12 consecutive months of employment, you must give the employee 2 weeks' written notice or an amount equal to 2 weeks' wages, (or a combination of both); and
  2. after 3 years of consecutive of employment, you must give the employee 3 weeks' notice and 1 additional week's notice for each additional year of employment up to 8 weeks' notice, or an amount equal to 3 weeks' wages plus 1 additional week's wages for each additional year of employment, to a maximum of 8 weeks' wages (or a combination of both notice and wages).

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Do directors or officers have any personal liability for severance pay?
Yes, under the Employment Standards Act, all directors and officers of a company, who hold those positions at the time that the employees are being laid off, are personally liable for up to two months of severance pay per employee, unless the company is in formal receivership or subject to statutory insolvency proceedings.

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Is an employer required to provide notice and/or severance pay if the employer's business closes down and they lay everyone off?
Employers are required to provide the same notice and/or severance pay in lieu of notice if a business closes for any reason, just as they would be required to do if they terminated the employment without cause. At a minimum, employers must provide notice, or pay in lieu of notice, as set out in the Employment Standards Act. However, employers may be required to do more than the statutory minimum if there is a contract setting out longer periods, or if required by the common law.

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Our payroll staff has inadvertently overpaid some of our employees. Can we simply deduct the overpayment from future pay to those employees?
The Employment Standards Act prohibits any deductions from wages unless authorized by law (tax, EI, CPP) or agreed to by the employee. This means that if the employee does not voluntarily agree to a re-payment plan via payroll deduction, the employer must pursue either a grievance through the employee’s union, or commence Court proceedings against the employee to recover the overpayment.

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One of our employees has quit and he owes us money from a loan program we had to assist employees purchase a home computer. Can we deduct what that employee owes us from his final pay?
No, the Employment Standards Act prevents the employer from making this deduction unless the employee agreed to such a deduction in the employment agreement or some subsequent separate agreement. Without an express agreement to deduct amounts owed from final pay, an employer must pursue a claim in Court unless the ex-employee agrees to voluntarily repay the amount.

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Canada Labour Code

Which statute applies to determine minimum requirements for notice or severance?
If you are an employer in B.C., for most occupations the applicable legislation is the British Columbia Employment Standards Act. If, however, you are a federally regulated employer, such as a bank, airport, railway, shipping and trucking company, the Canada Labour Code applies.

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Collective Agreements / Grievances

My employee's union has decided to drop or refuses to pursue their grievance against my company. Can my employee pursue the grievance themself?
No. Your employee's union has exclusive rights to bargain and enforce collective agreement rights on their behalf.

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Can an employee force their union to pursue their grievance?
Unless there are provisions in the collective agreement that give your employee the right to appeal a decision to drop their grievance, or they have grounds for an 'unfair representation' complaint to the Labour Relations Board, then the union's decision is final and binding upon the employee. If they convince the Labour Relations Board that they have not been fairly represented, the Board will make one or more orders to the union, but the Board cannot resolve or deal directly with an employer to resolve an employee's grievance.

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Employment Agreements

I have asked all of my employees to sign an employment agreement. The employment agreement contains things that some employees do not agree with. Do they have to sign it?
It depends.

If the person in disagreement is a prospective employee who has not yet started their employment and the signing of the agreement is a condition of employment, you can require that they sign the agreement in its existing form to begin employment.

If you already employ this person, and did not ask them to sign the employment agreement at the start of their employment, you cannot make them to sign the agreement. If the employee does agree to sign, in order for the agreement to be binding on them, you, as an employer, must provide the employee with what lawyers call 'new consideration.' Consideration is something of value that you give the employee in exchange for them agreeing to sign the agreement.

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Can I fire an employee if they don't sign an employment agreement?
Some employers inform their employees that they will be fired if they don't sign the agreement. If an employee refuses to sign, you have a couple of options: you could fire your employee without cause and pay them severance in lieu of notice OR you could give your employee notice that their employment terms will change (consistent with the new agreement) after a period of time equal to the notice period that you would have had to give your employee in order to fire them without cause.

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Human Rights

Can an employer lay off an employee before, during or after their pregnancy or parental leave?
Yes, but only under certain conditions. First, the termination of employment cannot in any way be the result of the employee's pregnancy or parental leave. In other words, an employer is only allowed to lay off an employee if the termination would have happened in any event (i.e. they would have been terminated even if they weren’t pregnant or taking parental leave). Second, any actual termination or notice of termination cannot take effect if the employee is actually on pregnancy or parental leave. (In other words, while a notice of termination can be given to the employee on leave, it cannot take effect until the date the employee is scheduled to return from her leave. At that time, the employee would then be entitled to the notice of termination (or pay in lieu of notice) based on their total service (including her leave). Employers should carefully consider any decision to lay off an employee immediately before a pregnancy or parental leave is to start, as the employee may have great difficulty finding alternate work and potentially not qualify for pregnancy/parental leave (EI) benefits thereby increasing the compensation owed by the employer to the employee.

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A job applicant who did not get a job with our company suspects that they have been discriminated against. Can they make a Human Rights Complaint?
Yes, provided that the discrimination was based on one of the protected grounds set out in the Human Rights Code.

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On what grounds can someone make a Human Rights complaint against an employer or a prospective employer?
Discrimination by an employer or potential employer on the basis of: race; ancestry; place of origin; political belief; religion; marital status; family status; physical or mental disability; sex (including pregnancy and transgender discrimination); sexual orientation; age; or criminal conviction or summary conviction for behaviour which is unrelated to the job or potential job, are grounds for making a Human Rights complaint.

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Is there a minimum amount of time an employee must have worked for an employer before they are entitled to maternity leave?
No, if you are an employer in British Columbia there is no minimum amount of time that an employee must work for you before they are entitled to take maternity leave. However, an employee wishing to take maternity leave must submit a request for maternity leave to you in writing and at least 4 weeks before they propose to begin their leave.

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How long does an employee or prospective employee have to bring a human rights complaint?
Under the Human Rights Code an employee or prospective employee has 6 months from the date on which the discrimination occurred to make a complaint. If the discrimination is of an ongoing or continuous nature, the complaint must be filed within 6 months of the last instance of discrimination. If the employee or prospective employee has missed the 6 month limitation period, they may still apply to the Human Rights Tribunal to accept all or part of their claim. The Tribunal may agree to overlook the expiry of the limitation period where it is in the public interest to accept the complaint and there will be no substantial prejudice (i.e. the other party will not be at a significant disadvantage) because of the delay.

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An employee has developed a medical condition and, on their doctor's advice, has asked their attendance at work be excused for a period of time. What medical information is an employer entitled to ask for un order to verify this employee's request?
Employers are entitled to a letter from their employee's doctor verifying that they have a medical condition which requires an absence from work, and the length of time that the doctor believes the employee will be absent. Employers are not entitled to any specific information regarding an employee's medical condition unless the employee is claiming that their condition was caused by their employment.

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Is an employer required to give an employee time off work as recommended by their doctor if they have developed a medical condition or injury?
An employer is required to accommodate an employee's request to the point of undue hardship, even if their request falls outside their employment sick leave policy or collective agreement. This is because the Human Rights Code protects an employee from discrimination due to disability. Determining what constitutes 'undue hardship' is dependent on the facts of each situation.

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An employee has developed a medical condition which requires change to some of their work conditions. Does an employer have to make these changes for their employee even if they don't want to?
That depends. An employer is entitled to verification from their employee's doctor that they have a medical condition which requires changes to their job. An employer is also entitled to a medical opinion of the restrictions that the medical condition places on their employee's health and the employee's ability to do their job. An employer must then consider whether or not it can modify the employee's job requirements to accommodate those restrictions, whether the modifications create safety concerns for the employee or their co-workers, and whether or not the accommodations made on their behalf can be made without undue hardship.

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Can an employer refuse an employee's request to accommodate their medical disability (temporarily or permanently)? What are the consequences for refusal to accommodate?
If an employee has asked you to accommodate their medical disability and you and your employee cannot agree on what if any accommodation should be made, then the employee may have grounds to file a complaint against the employer with the B.C. Human Rights Tribunal.

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Maternity Leave

Can an employer fire an employee before, during or after their maternity leave?
Yes, but only under certain conditions. First, the termination of employment cannot in any way be the result of the employee's pregnancy or maternity leave. In other words, an employer is only allowed to fire an employee if the termination would have happened in any event (i.e. they would have been fired if they weren't pregnant or taking maternity leave). Second, any actual termination or notice of termination cannot take effect until after the employee returns from maternity leave. At that time the employee would then be entitled to the notice of termination (or pay in lieu of notice) based on their total service (including your maternity leave).

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Is there a minimum amount of time an employee must have worked for an employer before they are entitled to maternity leave?
No, if you are an employer in British Columbia there is no minimum amount of time that an employee must work for you before they are entitled to take maternity leave. However, an employee wishing to take maternity leave must submit a request for maternity leave to you in writing and at least 4 weeks before they propose to begin their leave.

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Non-competition & Restrictive Covenants

In the absence of a non-competition agreement and restrictive covenants, is there anything employers can rely on to restrict former employees from competing with them?
In the absence of a non-competition agreement or restrictive covenant, regular or "mere" employees are entitled to compete with their former employer and even solicit their former employer's customers, as long as the employee does not use the former employer's confidential information to do so. Employers should ensure departing employees do not take any hard copy or electronic documentation or information when leaving the company.

However, fiduciary employees have much stricter obligations to their former employers. Generally speaking, fiduciaries are directors or officers of a company but can also include other key employees. In most cases, a fiduciary has an obligation not to solicit customers or clients of his or her former employer for a reasonable period of time following the termination of his or her employment. Fiduciaries also have a duty not to misappropriate any maturing corporate opportunity belonging to their former employer.

All employees, fiduciary or non, have a duty of good faith and fidelity towards their employers. Employees who, during the course of their employment, take active steps which are detrimental to the interests of their employer (for example starting a competing business) might be seen as breaching this duty of good faith.

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Can an employer restrict an employee from competing with them once that employee's employment is terminated?
Yes. An employer can restrict former employees from establishing competing businesses, working with a competitor or soliciting the employer’s customers by having non-competition agreements with these employees or by including restrictive covenants in their employment contracts.

Employers should take particular care to ensure the non-competition clauses and restrictive covenants in their employment contracts are not so far reaching that they could be seen as an unreasonable "restraint on trade." Where non-competition clauses and restrictive covenants are used, they must not go beyond what is necessary to protect the employer’s legitimate interests. If the court finds a non-competition clause or a restrictive covenant to be an unreasonable restraint on trade, that clause will be unenforceable and the employer will be vulnerable to competition from their former employee. In determining whether a restrictive covenant is enforceable, the court will consider the geographic coverage of the covenant, the period of time in which it is effective and the extent of the activity sought to be prohibited. Attempts to interfere with a former employee’s general ability to practice their trade or profession are seen as unreasonable and contrary to public policy.

Non-competition agreements and restrictive covenants can be beneficial to employers if properly drafted. The law in this area is complex and there are strict rules regarding the enforceability of non-competition agreements and restrictive covenants. Therefore, when dealing with drafting or interpreting restrictive covenants and non-competition agreements it is very important to get legal advice.

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Severance Packages

Is an employer required to give severance pay to an employee they terminated?
If you terminate an employee without cause, you are required to give them working notice or severance pay instead of notice. At a minimum, the amount of notice or severance pay will be determined by the terms of the employment contract or, if there is no written employment contract, by statute. Minimum severance provisions are provided for in the BC the Employment Standards Act and, for federally regulated employers, the Canada Labour Code.

In some circumstances, you may however be required to give an employee a longer notice period or a higher severance payment. If you are unable to negotiate a reasonable severance payment with your employee, the amount of notice or severance could be determined through a wrongful dismissal action brought by your employee in court.

If you terminate an employee for cause, and have a basis for justifying the cause alleged, you are not required to provide any notice or severance pay.

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Can I require an employee that I terminated to sign a release as a condition that must be satisfied before I give them a severance package?
You cannot require an employee to sign a release if you are simply providing them with the notice or severance pay required by the applicable statute. However, if you are offering a severance package that exceeds the requirements of the statute, you may require that the employee sign a release in exchange for any amounts in excess of the statutory minimum.

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Wrongful Termination

Are the notice and severance provisions in the Employment Standards Act or Canada Labour Code all that an employer is required to give an employee when firing them without cause?
Not necessarily. The Employment Standards Act and the Canada Labour Code establish the minimum notice or severance in lieu of notice that an employer is obliged to provide. However, the common law (which is law developed by judges in decisions of courts) has established that employees are entitled to "reasonable notice" of termination, which can be much more than what is required by statute. Reasonableness depends on several factors including the character and length of employment, the employee's age, gender, experience, training and qualifications, and the availability of similar employment.

If an employer has a written contract with their employee that deals with notice and/or severance, then the provisions in the contract will determine how much notice the employer is required to give the employee they terminate without cause, so long as it is not less that what they would be required to give under the applicable statute. Employers are not allowed to contract out of the minimum notice provisions set out in the Employment Standards Act and Canada Labour Code. If the contractual provisions dealing with notice and severance are not worded properly, the entire section of the contract could be void, in which case the common law rules for calculating notice apply.

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Can I require an employee that I terminated to sign a release as a condition that must be satisfied before I give them a severance package?
You cannot require an employee to sign a release if you are simply providing them with the notice or severance pay required by the applicable statute. However, if you are offering a severance package that exceeds the requirements of the statute, you may require that the employee sign a release in exchange for any amounts in excess of the statutory minimum.

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