How Do I Fire Someone Properly?


As an employment lawyer, one of the most common questions I get from employers is “How do I fire someone properly?” Proactive work can save a lot of stress and expense, compared to a “fire now, ask questions later” approach. Here are 5 things to think about when terminating an employee.   

1. With or without cause? 

If you terminate with cause, the employee could be terminated effective immediately and would not be entitled to any severance. However, proving that you have cause to terminate an employee is a high bar to meet. “Cause” means that an employee has engaged in some type of serious misconduct that would justify dismissal without further warnings or other types of progressive discipline. Most terminations are without cause and advance notice and/or severance pay is required. 

 2. Start with the employment contract

When an employee is fired without cause, calculating how much severance pay is owed can be straightforward if there is a valid and enforceable termination clause in their employment contract. Most employees are governed by the BC Employment Standards Act (ESA), which outlines the basic standards of compensation and conditions of employment—it sets the minimums. If the amount of pay or notice in the contract falls below the minimum termination notice required by the ESA, the termination clause is invalid, and an employee could be entitled to severance under the “common law”.  

3. Consider human rights

The BC Human Rights Code helps protect people from discrimination in the workplace. In plain language, discrimination means treating someone badly or denying them a benefit based on a personal characteristic that is protected by the Code. Employees may file a complaint with the Human Rights Tribunal if they believe they have been discriminated against by their employer. As such, you cannot fire your employee on the basis of any protected human rights ground. If the employee can prove that their protected characteristic, such as age, was a factor in the adverse impact, for example the termination of their employment, you could be found to have discriminated against your employee. Since the remedy for a human rights claim can be substantial and includes wage loss and injury to dignity damages, it’s important that you do not terminate an employee based in any part on their protected personal characteristics. Protected personal characteristics for employment can be found here: 

 4. Write it up

An employer must be as clear and concise as possible when communicating a termination of employment. In advance of the termination meeting, prepare a termination letter to give to the employee at the meeting. The letter should include a specific date of termination, and in some cases, could include a severance offer in exchange for a Full and Final Release from the employee. Remember, however, that you cannot ask an employee to sign a Release in order for them to receive their basic minimum entitlements under the ESA. Termination letters should be prepared meticulously with careful reference to the employee’s contract and the requirements of the ESA. Even innocent mistakes can be costly.  

5. Respectful delivery

You may want to start the termination meeting by acknowledging that this was a difficult decision to make for the company. You are not obligated to explain or give reasons for the termination. Ideally, you should go over the contents of the termination letter as briefly as possible. If possible, conduct the termination meeting with another employee present, preferably an office manager or supervisor, so that you have a witness—especially if it’s expected to be a difficult meeting. If you’ve presented the employee with a severance offer and Release, they should be given adequate time to review the information and be provided with an opportunity to seek legal advice. 


This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Four Things to Consider When Adopting a Parental Leave Policy

Employers typically consider maternity and parental leave policies when they want to incentivize employees to return from their leaves after having a child, and also when they realize that supporting their employees financially while on a period of a reduced income makes sense for long term employment relationship. Particularly, in the current Canadian job market which has been described as a “candidate” job market. Here are four things to keep in mind:

1. Is a policy necessary?

Unless there is anything additional or extra that you are providing your employees, your workers may already be protected by B.C.’s Employment Standards Act (the “Act”) (see sections 50 and 51), and the Employment Insurance (EI) regime. If your workforce is excluded from the Act (as are architects, engineers, lawyers, naturopaths, insurance agents, and others) you can still use the Act as a reference for how to manage these types of leaves[i].

2. What you need to know to get started.

If you decide that your organization needs a policy, make sure you understand the difference between:

    1. Maternity Leave, which includes an EI benefit maximum of 17 weeks. This benefit is for the person who is about to, or has, given birth; and
    2. Parental Leave, which includes an EI benefit maximum of 35 weeks (“standard”) or a maximum of 61 weeks (“extended”). This benefit is for either parent, or for adoptive parents.

Keep in mind that the parental leave can be taken once the maternity leave has expired, turning the standard leave into 52 weeks, and the extended leave into 78 weeks (18 months). Also keep in mind that Parental leave can be taken at any time within the first 18 months of the child’s life, or the first 18 months of the child being placed with the adoptive family.

3. Will you top up?

If you are providing your employees with a supplementary amount to their EI benefit, or “Top-UP” a policy is definitely recommended. Consider:

a. The reasons behind providing the Top-Up. If your goal is to incentivize parents to return from the leave and to stay with your organization, say so in the policy. Also, a repayment clause may be appropriate. For instance, “should you resign during the leave, or in a period of 6 months from your return from leave, you will repay the amount of the Top-Up in full”.

b. The amount of the Top-Up. Crunch the numbers and determine how much you can afford and for how long you will provide the Top-Up. Also consider what your competitors are doing. Some employers provide 60% of the difference between the employees’ pay and the EI benefit. Others provide much higher percentages, with some employers toping up to 100% of the wages. The period of time can also vary from 6 weeks on the lower end, to the full 78 weeks at the higher end, with most employers capping the top up somewhere between 35 weeks and 52 weeks. Because you will need to know how much the employee is receiving in EI to calculate the Top-Up amount, it makes sense for you to make the employee’s receipt of the Top-Up on the condition that they receive EI.

c. The eligibility for the Top-Up. Is this something you want to provide to all employees as of day one? Or something you want to reserve for your permanent full-time employees with a certain amount seniority? Since this is not a benefit that is required under the Act, you have flexibility as to who gets it and when, as long as you are not running afoul of the B.C. Human Rights Code.

4. What should happen while the employee is away.

If your workforce is covered by the Act, then you need to ensure to continue to calculate annual vacation, to continue benefits and to count their time away to their length of service with your organization, as if the employee was actively at work during that time. If the employee paid some of the premiums for the benefits, you can arrange for the payments to continue to be made by the employee while they are on leave.

Also, upon the end of the leave, employers have an obligation to provide the employee with their same position or an equivalent one. Make sure that anyone you hire to cover the employee that is on leave is hired under a temporary employment agreement with a notice of termination provision that allows you to welcome the employee on leave back without delay.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

[i] The information in this blog applies to workplaces that are provincially regulated and does not apply to workplaces that are federally regulated (i.e. banking, shipping, telecommunications) and covered under the Canada Labour Code (“CLC”). The maternity and parental provisions of the CLC are similar to those of the Act, and can be found at sections 206, and 206 of the CLC.

A Win for Mom – tribunal finds employer discriminated against employee on maternity leave

The Human Rights Tribunal recently found that Prince George Ford (“Ford”) discriminated against new mom Mellissa LaFleche based on sex and family status contrary to the section 13 of the Human Rights Code.  

While on maternity leave, employee Ms. LaFleche went to her employer, Ford for a meeting about her return to work. It was an informal meeting and Ford had not thought through what it was going to say. There was conflicting evidence about what Ms. LaFleche was told at that meeting, but the Tribunal found:

  • “the clear inference from this discussion is that, at best, Ms. Callaghan [the woman filling in for Ms. LaFleche during her maternity leave] would retain marketing manager duties and Ms. LaFleche’s role would significantly change”, (paragraph 44).
  • “It was clear from the surrounding discussion that [Ms. LaFleche] would not be returning to the same duties and role…” (paragraph 45).
  • LaFleche felt humiliated, distressed and nervous about money and lost sleep, her appetite, a sense of security and enjoyment of maternity leave (paragraph 50).

Ford told Ms. LaFleche that it would follow up with her after the meeting about what position or duties it would have for her on her return, but it did not.

The Tribunal considered whether Ford had constructively dismissed Ms. LaFleche – constructive dismissal is a form of termination of employment that occurs when an employer fundamentally unilaterally changes the terms of employment – and concluded Ford had. It ordered Ford to pay Ms. LaFleche significant wage loss damages (about $70,000 less about $3,750 already paid to her) and injury to dignity damages ($12,000). Notably, the award for wage loss damages included both actual wage losses of about 7.5 months wages (about $40,000) and loss of maternity and parental benefits during Ms. LaFleche’ next year long maternity leave (about $30,000).

  • Moms / New Parents:  Being told by your employer that they like your replacement better and you’ll have different duties on your return to work is discrimination.
  • Employers: absent reasons totally unrelated to the employee’s leave, you need to return employees to the same position they held before going on leave. Think carefully about what you say to employees on leave and about how they could take it.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

Recording conversations at work – will it get you in hot water?

We are regularly asked by employee and employer clients about secretly recording conversations (audio or video) at work.  Some common questions we get are:

  • Is it legal to record conversations at work?
  • I think I am going to get fired, should I record the meeting?
  • What can I do with the recording, if someone is lying about what was said in the meeting?

With a smartphone in everyone’s pocket, it can be done with the press of a button, but should you?

Is recording conversations legal?

In Canada, it is not a crime to secretly record conversations as long as you are an open participant in that conversation.  This is different from recording a conversation in which you are not an open participant.  For example, planting your smartphone in an office on record, and then leaving the room and recording conversations between others while you are not there is not legal.  That type of recording is not legal and could have criminal consequences. Don’t do it!

Secretly recording conversations is risky

Assuming we are only talking about recording conversations in which you are openly participating, in the employment context, should you do it? It is risky and here are some of the reasons why:

  • If you are an employee, recording conversations at work could be a violation of your employment confidentiality/privacy obligations, agreements or policies. Depending on the circumstances, you could be disciplined or even fired for making the recording. Even if your employer does not have policies against recordings, making secret recordings could be taken by your employer as a reason to fire you for cause. This is because of the trust that is needed in an employment relationship.
  • If you are an employer, you have obligations under privacy legislation to notify your employees that you will be collecting their personal information and the purpose of doing so before you do so. Making secret recordings could be the basis for claims against you including claims for constructive dismissal, breach of privacy and depending on the circumstances, aggravated or punitive damages.
  • Whether you are an employee or an employer, if you end up in court, you might have to produce the recording, even if it doesn’t help your case.

So, think long and hard before secretly hitting record at work.  If you think you need to make secret recordings, this is a sign that there is a problem.  You should consider whether there are more upfront strategies for dealing with the situation.  If you have already secretly recorded a meeting and are involved in an employment dispute or expect to be, an employment lawyer can help you decide whether and how the recording can be used.

This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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Take this job and shove it

New Year, New Job - An Employment Law Perspective

Resolve to quit this year? I have advised many employees who are in a bad work situation, or have found a better job or business opportunity, and are ready to resign. Before you throw in the towel, here are a few key legal issues to consider:

Could this be a constructive dismissal?

If you are quitting, not by choice, but because of fundamental changes to your job to which you did not agree, this could be a constructive dismissal. If you have no choice but to quit because of a hostile or intolerable work environment, this could be a constructive dismissal. The threshold is pretty high - the changes have to be significant. It can be hard to prove that an environment is so hostile that you had to quit.

If it is a constructive dismissal, even though you are quitting, you might be entitled to severance pay. If you think a constructive dismissal is forcing you to quit, I recommend that you get legal advice before you hand in your resignation letter.

How much notice do I need to give?

I get this question a lot. The first thing I do is look at the written employment contract (if there is one). Some employment contracts specify the amount of resignation notice that the employee has to provide. If there is nothing in the contract, then I look at employer policies (if there are any). If there is a contract or employer policy that states the amount of resignation notice they expect, it is usually safe for an employee to follow that.

If there is no contract or policy, I explore with my client what is reasonable in the circumstances of their job. How difficult will it be for the employer to transition their work? 2 weeks notice is enough in many situations, but in some cases, less or more notice might be appropriate. It is also worth considering whether there might be some strategic advantage to providing a longer period of notice.

Can I take customers or company information with me?

This is a hot button issue for employers. If you are thinking about secretly copying or taking information, the fact that you are hiding it is a sign that it is probably a bad idea. You owe your current employer a duty of loyalty while you are still employed, and you may have duties that extend even after you have left. Some employment contracts contain "non-solicitation" or "non-competition" restrictions that limit what you can do for a period of time after you leave. These may or may not be legally enforceable. If you have this type of contract, or if you plan to take customers or company information, I strongly recommend getting legal advice about your rights and obligations, and the potential consequences.

Timing is important

There is rarely a perfect time to make a change, but it is important to consider what is on the horizon. Is there a bonus payment coming up? If it is a matter of a short delay, you may be better to wait until you have that money in your account before you resign.

Leaving on a good note

While the "take this job and shove it" approach can be appealing, it is not one that I recommend. It is always better to leave on a good note if you can. If you are feeling emotional, which is normal, it can help to put together a written resignation letter. Email is fine, but you should take time to carefully consider the wording and message that you are sending.

Or ignore all of the above and maybe you can be the star of the next funny quit video compilation on YouTube:

(Author has no connection to YouTube video creator, just googled funny quit videos, found this and laughed).



This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts.

Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].

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