Part 2
A “month” is defined in the Interpretation Act as a period calculated from a day in one month to a day numerically corresponding to that day in the following month, less one day.
Example
Sue starts work on June 1, 2000. She is temporarily laid off for 6 weeks in January and February of 2003. After returning to work, Sue is terminated on June 1, 2003. She is entitled to 3 weeks compensation for length of service because she completed more than 3 years of employment on May 31, 2003 and was terminated on June 1, 2003. The employer would not have had to pay compensation for length of service if the employer had given written notice of termination or a combination of notice and money equivalent to 3 weeks compensation.
Once an employee is given written notice of termination, they are entitled to work during their notice period. Once notice is given, conditions of employment, including hours of work must not be altered without the consent of the employee or trade union representing the employee, if applicable.
Court proceedings impacted by payment of compensation for length of service
Receipt of compensation for length of service resulting from proceedings under the Employment Standards Act may serve as a bar to proceeding in court. Parties are encouraged to seek independent legal advice concerning matters before the courts. In addition, complainants with employment contracts that provide termination terms in excess of the standards set out in s.63 of the Act are encouraged to seek legal advice prior to filing a complaint with the Employment Standards Branch.
Director may refuse to investigate a complaint
The director may refuse to investigate a complaint regarding termination of employment for just cause if it is the subject of a proceeding in the courts or before another tribunal.
The Act does not require employees to mitigate their losses
This means compensation for length of service that an employee is entitled to under this Act is not reduced because of money an employee may receive from another source.
Subsection (3)(c)
The employer is not required to pay compensation of length of service or to provide written working notice of termination when an:
employee quits employment
employee retires
employee is dismissed for just cause
employee is employed at construction sites by an employer whose principal business is construction.
Section 65 of the Act outlines other circumstances when written notice or compensation for length of service does not apply. Part 7 of the Employment Standards Regulation sets out professions and occupations that are exempt from all or parts of the Employment Standards Act.
Notice of Resignation
There is no requirement under the Employment Standards Act for an employee to give notice of resignation.
However, if an employee does give notice of resignation that is less than or equal to their entitlement under this section of the Act, and the employer then terminates the employee during this period, the employee would be entitled to compensation equal to the lesser of the notice they gave, or the statutory entitlement under this section of the Act.
Example
Donna, who has completed 4 years of employment, provides her employer with two week’s notice of their intention to quit. Upon receiving the notice, the employer terminates Donna without just cause. Donna would be entitled to 2 week’s compensation for length of service in keeping with the length of notice she had provided to her employer.
Quit versus Fire
Sometimes disputes arise as to whether an employee quit or was fired. The onus for proving an employer is relieved of the need to give written notice or compensation for termination is on the employer who asserts it.
Zoltan Kiss; (B.C. EST #D091/96) sets out a test used to determine whether an employee quit or was fired, for the purpose of the Employment Standards Act:
“The right to quit is personal to the employee and there must be clear and unequivocal fact to support a conclusion that this right has been voluntarily exercised by the employee involved. There is both a subjective and objective element to a quit; subjectively, the employee must form an intent to quit employment; objectively, the employee must carry out an act inconsistent with his or her employment.”
Retirement
Although the usual retirement age is 65, an individual may choose to retire at any age.
Under the Act, an employer is not required to pay compensation for length of service or provide written notice when an employee retires voluntarily or retires at a set age in accordance with the employee's employment contract or any applicable legislation.
Just Cause
An employer is not required to pay compensation or to provide written working notice of termination if an employee is dismissed for just cause. Again, the onus for proving that an employer is relieved of the need to give notice or compensation for termination is on the employer who asserts it.
When an employee, not covered by a collective agreement, is terminated without just cause, recourse exists through:
statute law (Employment Standards Act and Regulation, Human Rights Act)
common law action for wrongful dismissal
The Human Rights Act addresses situations where there is an allegation that employment has been terminated for reasons of discrimination. The Employment Standards Act also prohibits an employer from terminating employment for reasons related to pregnancy or leaves under the Act.
Examples of “just cause” for termination
There is no rule of law outlining what degree of employee misconduct constitutes “just cause”. There is, however, a test to be considered. “Did the employee behave in a manner that is not consistent with the continuation of employment?” Courts have recognized the following actions, among others, to be just cause for termination:
willful misconduct
gross incompetence
theft
fraud
conflict of interest
serious undermining of the corporate culture
serious breach of employer rules and policies (sexual harassment violation)
failure to respond appropriately to corrective discipline
The burden of proving if the conduct of the employee justifies dismissal is on the employer. Whether just cause exists is a matter of finding, taking into accounts the circumstances and relevant factors in a particular case.
Willful misconduct
It is often accepted that wilful misconduct means that the employee knew what they were required to do, and deliberately did not do it, or the reverse – knew what was not permitted, but did it anyway. An employer must prove that the employee was aware that the consequence of their actions would lead to dismissal. A mistake, however, especially if due to inexperience or lack of training, is not considered to be wilful misconduct.
