Employment Law - Forte Law

Employer Policies, Employment Contract, Employment Law

Sick of sick notes? What employees and employers need to know about changes to the BC Employment Standards Act

Sick of sick notes? What employees and employers need to know about changes to the BC Employment Standards Act

For years, BC employees have been playing the game of Sick Note Triathlon: waking up with a sore throat or other symptoms, sprinting to the closest clinic, and waiting behind a dozen other miserable-feeling people to secure a one sentence note excusing them from work. As of November 12, 2025, changes to the BC Employment Standards Act mean this tiring sport has been retired for some short-term medical absences.

For BC employers, these new restrictions on when doctor’s notes can be required have them scrambling to change their policies and processes. The new rule also leaves open questions about what employers can do when there is reason to suspect sick leave abuse.

What are the new rules about sick notes in BC?

The Government of British Columbia has introduced new rules about when employers are permitted to request sick notes for short term medical illnesses. The amendments apply to health-related leaves under the Employment Standards Act, which include absences due to the employee’s own illness or injury as well as the illness or injury of an immediate family member. Note that the amendments only apply to employees who are covered by the Act (for example, certain professions such as lawyers and dentists are excluded).

The change is simple on its face: subject to narrow exceptions, an employer cannot require that an employee provide a sick note for the first two medical absences of five days or less in a calendar year. This protection applies regardless of the type of illness or whether the leave was for the employee or an immediate family member.

The Government’s Policy Interpretation guidelines released with the new rule note that even for the third or subsequent medical absences in a year, if it is a health-related leave under the Act (for example, if it is still within the 8 days sick leave per year protected under the Act), employers are only permitted to request “reasonably sufficient proof.” The guidelines suggest that it is likely not reasonable to request a doctor’s note for a relatively common illness that is short in duration. The Policy Interpretation suggests that a pharmacy receipt for over-the-counter products such as pain medication or verbal or written confirmation from the employee “should likely be sufficient.”

Nowhere in the new rules or Policy Interpretation does the Government address what (if anything) employers can do if they suspect an employee is dishonestly abusing sick leave. For the first two medical absences of five days or less in a year, there is no stated exception for suspected abuse. For the third or subsequent absence, a reasonable suspicion of sick leave abuse may be a basis to require a doctor’s note as “reasonably sufficient proof.”

When can employers ask for doctor’s notes?

After the first two absences in a year, or for any absence of more than 5 consecutive days, a medical note may be requested for health-related leaves under the Act if it is “reasonably sufficient proof” in the circumstances (see above for the Policy Interpretation guidance on this). Sick leaves beyond the protected health-related leaves under the Act are not subject to the “reasonably sufficient proof” restriction and these rules to do not apply.

The Policy Interpretation guideline states that employers are allowed to request medical information, including medical notes, if the information is needed for return to work planning, such as confirmation of fitness to return to work, or to arrange workplace accommodations.

Sick leave entitlements remain the same

Minimum sick leave entitlements still remain the same under the new rules – employees are entitled to a minimum of 5 paid and 3 unpaid sick days per calendar year, provided they have completed 90 consecutive days of employment.

Takeaways for employers, employees and unions

Employers should review their policies to ensure they are compliant with the changes to the Employment Standards Act and ensure management and supervisors are aware of the new restrictions. Many employers have sick leave policies that give the employer discretion to request doctor’s notes for sick leave of any length. These employer policies are now inconsistent with the Act, and if employees are required to provide doctor’s notes at times prohibited by the new rules, they can file complaints with the Employment Standards Branch.

Employees should be aware of their rights and obligations when taking sick leave. Many employers will not be aware of the new rules, and employees may need educate them about their rights when asked for a doctor’s note.

Unions should review collective agreement language and employer policies to assess compliance and ensure that members and employers are informed of these new restrictions on when medical notes can be required.

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

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Employment Law, Resignation

Can You Really Get Sued for Quitting Your Job? Here’s What the Law Says

Can You Really Get Sued for Quitting Your Job? Here’s What the Law Says

Leaving a job can be emotional. For employees, it may mean a fresh start or simply the relief of moving on. For employers, it can cause disruption: scrambling to cover workloads, reassuring clients, and managing change. With so much at stake, we sometimes get asked: can an employee be sued for quitting?

The short answer is yes, it can happen, but only in extraordinary situations. Lawsuits against employees who have resigned are rare. Most lawsuits against resigning employees involve other issues like failure to give notice of resignation, use of confidential information, or solicitation of clients or employees. In most lawsuits against departing employees, the employer has experienced concrete, measurable, financial losses from the employee’s sudden exit.

Do employees have to give notice?

Yes, some advance notice of resignation is legally required. If you are wondering about notice in your specific situation, the first place to check is the employment contract. Many contracts specify the amount of notice that needs to be provided for resignations.

If there is nothing in the contract, in British Columbia, there is no statutory requirement under the Employment Standards Act for employees to give notice of resignation. That said, employees still have a common law duty to provide “reasonable notice” when leaving a job.

There’s no set number of days for “reasonable notice”, but two weeks has become the cultural norm. For some roles, that’s more than enough. For senior or specialized positions, or fiduciary employees (more on this below) courts may expect more time.

Most claims come up when someone quits without any warning, takes a new role with a competitor, and pulls clients or colleagues along with them. In those cases, an employer might be able to prove they’ve suffered financial harm. A good example of this is in a case that went all the way to the Supreme Court of Canada in 2008: RBC Dominion Securities Inc. v. Merrill Lynch Canada Inc.

For employees, providing reasonable notice under your contract or common law reduces that risk and helps preserve professional relationships. For employers, reasonable notice buys time to transition and plan for the gap.

What about confidential information?

Former employees using confidential information after leaving the organization is a recurring issue that leads to legal battles. Confidential information is basically anything the employee would not have known without working at the organization, this includes trade secrets or client information.

Even if there is no written confidentiality agreement, courts recognize a continuing duty not to misuse information learned during employment. Employees should walk away with their skills and experience, and not with the employer’s records, customer information or strategies. Employers, for their part, should make sure those expectations are clearly set out in employment contracts and workplace policies, and reinforced before and after a resignation.

In short, employees should leave with their coffee mug, family pictures, and the skills they gained, but not with documents or records that belong to the employer. For employers, that means making sure confidentiality obligations are communicated clearly, ideally in writing, and that former employees understand these expectations.

Competing after quitting

Many employees worry they won’t be able to work for a competitor or start their own business after leaving their job. The answer depends on what’s written in the employment contract and the role of the employee.

Non-compete (or non-competition) clauses are sometimes included in contracts, but courts often strike them down if they go beyond what is needed to protect the employers’ legitimate proprietary interests. Non-solicitation clauses, which stop former employees from bringing clients or colleagues over to a new employer, are more likely to hold up if they are reasonable – meaning they’re limited in time, geography, and scope. This is a pretty technical area of the law, and we strongly suggest consulting with an employment lawyer if you are an employee or employer wondering if this kind of clause in a contract could apply to post-employment competition.

If an employee held a position of particular trust and authority, they could be a fiduciary employee. These employees are expected to act with loyalty and good faith even after they resign. That could include not soliciting clients or employees for a period of time after employment.

Vacation or wage overpayments

Sometimes the dispute between an employer and employee who has quit isn’t about reasonable notice or competition but about money. This can come up when vacation has been taken in advance of accruing it, or if payroll errors leave questions about repayment.

In British Columbia, employers cannot deduct money from an employee’s pay without written consent. An employer could sue to recover an overpayment, but it may not be worthwhile to file a lawsuit over a small sum. Employees who have money withheld without their written consent can file a complaint with the Employment Standards Branch. The practical solution for both sides is to resolve these issues before the last day of work.

Bottom Line

So, can you really get sued for quitting? Technically yes, in specific circumstances, but in practice it is rare. Employers generally only pursue legal action if the employee not given notice or otherwise breached their employment contract and the employer has suffered real and significant harm.

For employees, providing reasonable notice and being mindful of confidentiality, non-compete, and/or non-solicitation clauses can avoid trouble in the long run. For employers, it’s far easier to set out clear expectations to a departing employee and address any outstanding issues before they walk out than to deal with it later down the road.

When handled professionally and effectively, resignations can be a clean start of a new chapter rather than the beginning of a painful legal dispute.

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

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Employer Policies, Employment Law

Caught with a colleague on the kiss cam? An employment law take.

Caught with a colleague on the kiss cam? Media and memes are abuzz this morning with the viral video of a CEO and Head of HR caught looking very cosy on the kiss cam at a Coldplay concert. When they noticed they were on the jumbotron, they quickly moved apart. Chris Martin, Coldplay frontman, then commented to the crowd that they must either be very shy or having an affair. Sounds like it was the latter with media reports that the CEO is married (and not to the Head of HR). Many are wondering, is this something you can get fired for? Here is an employment law take on some of the key considerations.

Is this sexual harassment?

Sexual harassment can definitely get you fired, but we don’t have enough information here to make this determination. Sexual harassment is defined in Canada as unwelcome conduct that is sexual in nature and leads to adverse work-related consequences. The key question here would be whether the conduct was unwelcome. Consensual relationships can happen between colleagues and, if truly consensual, are not sexual harassment. An important consideration in this case would be the power differential. As CEO, you really have to be sure that snuggling up at a concert is truly consensual and not influenced by your power over the employment relationship.

Is it against company policy?

Breach of policy can be another basis for termination. Some companies have policies about conflict of interest that require reporting of romantic relationships when one person is supervised by or reports to the other. I have not seen it reported whether this company had such a policy or if this relationship had been reported.

Is it damaging to the reputation of the company?

One important fact here would be whether this was a company event (was it in the company box with clients, for example) or if it was an off-duty moment caught on camera. If it was a company event, employment consequences are more likely, but even if it was “off-duty” there is still a connection to the workplace if it damages the reputation of the company. This is particularly so for the C-suite who owe fiduciary duties to protect the interests of the company as officers.

Does it matter if they are married?

In jurisdictions like BC where marital status is protected under human rights legislation, the fact that this is an extra-marital affair cannot be considered in determining the workplace consequences. If the company takes action against a married employee that it would not have taken against an unmarried employee, this could be discrimination under the Human Rights Code.

The bottom line is that there could be employment consequences here for one or both of these executives, who are expected to set company culture. Due to the very public nature of all of this, the personal consequences are undoubtedly already very real.

This blog is not legal advice and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Employment Insurance (EI), Employment Law

Canada EI Changes 2025: What the New Temporary Measures Mean for You

When job loss hits unexpectedly, it can leave you feeling uncertain and financially strained, especially when U.S. tariffs come into play. In response to these difficulties, the Government of Canada introduced temporary Employment Insurance (EI) measures on March 22, 2025 to provide workers with enhanced access to benefits and timely financial support. Recently, the Government of Canada has extended these measures.

These measures are designed to ease the burden of unemployment caused by significant economic changes, ensuring Canadians have the resources they need to navigate difficult times.

So, what are the Canada EI changes in 2025? Read below to find out how Canada’s temporary Employment Insurance measures can help you:

1. Eliminating the Waiting Period

Under normal circumstances, employees claiming EI must endure a one-week unpaid waiting period before receiving benefits. Between March 30, 2025, and April 11, 2026, this waiting period is waived, which means claimants to receive benefits immediately. This change ensures quicker access to financial support when it’s needed most.

2. Separation Earnings Won’t Be Deducted

Typically, separation payments such as severance pay or vacation pay are deducted from EI benefits, reducing the amount a claimant can receive. However, for claims filed between March 30, 2025, and April 11, 2026, these payments will no longer affect EI benefits. This adjustment provides additional financial relief to those transitioning between jobs.

My EI claim has been denied should I appeal?

Typically EI denials occur when the employee quits their job voluntarily or if they have been fired for cause. If you have been fired for cause and have had your EI denied, you should come and see us to see if you have grounds to contest the grounds of your termination and sue for wrongful dismissal.

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].

Employment Law

Tariffs and Economic Turmoil – What Canadian Employers Can Do to Prepare

We can put our heads in the sand, but there is no hiding from the news that tariffs and economic turmoil are coming for many Canadian businesses. While there is a lot of uncertainty, there is also, in a strange silver lining from the pandemic, a roadmap for employers to help navigate what is ahead. Based on what we learned in the early days of the pandemic, there are steps employers can and should take now to prepare.

Communicate with your team

If you have a business that is likely to be impacted by the tariffs, your workers already know this and are worrying about it. Now is the time to engage with your team members with discussions about how you anticipate the tariffs might affect your operations and your planned response. Depending on the size of your workforce, this might be in 1:1, small group, or townhall format meetings. Even if you don’t have all the answers or a fully formed plan, ongoing communication that lets workers know management is working on this is key to maintaining confidence and hope.

Create/update an employee census

This is a good time to ensure that you have an up-to-date spreadsheet of all of your workforce, including key information that would be needed to build a business continuity plan and be ready for downsizing or layoffs, if needed. To be ready to assess severance liability, data for each worker should include their start date, birth date, job title, work location, and compensation. You should also identify the workers who are critical for operations, even at a reduced scale.

Check your employment contracts

You should make sure you have all of the signed employment contracts for your workforce at hand and well organized. Often when we ask our clients for contracts, they may only be able to find drafts or are not sure whether there are contracts at all. It is best to look for these when things are not in crisis.

Check for layoff language in the contracts. The importance of temporary layoff provisions in employment contracts became apparent in early 2020, and many contracts that predate 2020 will not address layoffs.

Now is also a good time to have an employment lawyer review your contracts to ensure that they comply with developments in the law. Having an enforceable contract in place with a properly drafted termination provision can help substantially reduce liability in the event of downsizing. If you don’t have employment contracts for all of your workers, this would be a good time to get those in place. Careful consideration of whether a change of contract or new contract may be constructive dismissal is needed.

Know the law

Provincial employment standards legislation and the Canada Labour Code include minimum requirements for termination and layoffs. If you foresee downsizing or layoffs, it is important to review these legislated minimums well in advance to support your planning. Employment standards legislation is just the minimum standards, and it is a good idea to consult with an employment lawyer before taking steps that affect your employees in order to understand the full scope of your potential exposure and develop the best strategy for your business.

Build strategy now

There are ways to limit your liability and disruption for your workforce through advance planning. Giving advance working notice of termination or spreading dismissal dates over a number of months, for example, can dramatically reduce liability from downsizing, but must be done carefully. Advance working notice can also help workers plan their next steps.

Monitor for changes

Any plan made now will need to be flexible. We have heard that government supports for businesses are being considered. In 2020 that included lengthening the permitted layoff period, wage subsidies, and interest-free loans. These programs and policies were rolled out, and changed, very quickly. Impacted businesses will need to continuously monitor these changes and adapt their plans.

Survival of our Canadian businesses is more important now than ever, and planning will ensure we are able to weather the economic storms ahead.

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

Need legal advice? Contact us [email protected] or 604-535-7063. Our team of employment lawyers in BC and Alberta are ready to answer your questions.

Employment Law, Legal Advice

La Ley de Normas Laborales en British Columbia: Información básica

En B.C., los derechos de los trabajadores están protegidos por la Ley llamada Employment Standards Act (“ESA”). Esta ley establece los estándares mínimos que los empleadores deben cumplir en áreas clave como el salario mínimo, las horas de trabajo y las vacaciones pagadas.

Salario Mínimo, Horas de Trabajo y Horas Extras

Una de las disposiciones más importantes de la ESA es la garantía de un salario mínimo para todos los trabajadores. Al 2024, este salario es $17.40. El salario mínimo se establece regularmente mediante legislación y se ajusta para reflejar el costo de vida en la provincia.

Además del salario mínimo, la ESA también regula las horas de trabajo. Establece límites en la cantidad de horas que un empleado puede trabajar en un día y en una semana, así como los períodos de descanso obligatorios entre turnos. En B.C., el día laboral son 8 horas, por las cuales el empleador ha de pagar la remuneración por hora regular. Cualquier hora trabajada luego de 8 horas y menos de 12 horas, debe ser remunerada a la rata de 1.5. el salario regular. Horas trabajadas después de 12 horas, deben ser remuneradas al doble del salario regular.

Vacaciones y Licencias Pagadas

Otro aspecto importante de la ESA es el derecho de los trabajadores a tomar vacaciones pagadas. Según la ley, los empleadores están obligados a otorgar un cierto número de días de vacaciones remuneradas a sus empleados cada año (dos semanas o 4% del sueldo anual, y luego de cumplir 5 años de trabajo, 3 semanas o 6% del sueldo anual).

Además de las vacaciones pagadas, la ESA también establece licencias pagadas y no pagadas por motivos como enfermedad, maternidad o paternidad, y cuidado de familiares enfermos.

Cumplimiento y Protección

Para garantizar el cumplimiento de la ESA, el gobierno de B.C. cuenta con un sistema de aplicación de la ley. Los inspectores laborales tienen la autoridad para investigar denuncias de violaciones de los estándares laborales y tomar medidas correctivas cuando sea necesario. Además, los trabajadores que sientan que sus derechos han sido infringidos tienen el derecho de presentar quejas y buscar compensación.

Catalina es abogada especializada en derecho laboral in B.C. y regularmente asiste tanto a compañías como a empleados. También es mediadora e investigadora en asuntos laborales.

Este blog provee información general y no constituye asesoría jurídica. Cada situación debe ser evaluada en contexto. Necesita asesoría en materia laboral en Español? Catalina puede ayudar. Llamenos al (604) 535-7063 o escribanos [email protected].

Employment Law, Legal Advice

Breaking Down Emotional Barriers to Conflict Resolution: How a Mediator Can Help

In a previous blog, I posted about debunking mediation myths in which I explored one of the emotional barriers to mediation – a feeling that agreeing to mediation is a sign of “weakness.” I have been pondering a lot about other emotional barriers to conflict resolution, this time, during the mediation itself. Agreement to mediate is a great first step, but getting to a deal will take work during the mediation process and mediators can assist with navigating the difficult emotions that often arise. For represented parties, legal counsel has also a vital role to play in ensuring the parties feel comfortable and trust the process.

1. Anger and Resentment

These are common emotions that surround unresolved conflicts. Left unchecked, anger and resentment can escalate tensions and derail productive dialogue. These feelings can sometimes even transfer to legal counsel representing the parties. While emotions are allowed and can be necessary and productive at mediation, a mediator can, and should, defuse a volatile situation and create a safe, supportive environment for communication. One of the ways I do this is by creating rules of engagement that both parties can agree on, taking a break when those rules have been breached and speaking to the parties separately, as well as encouraging mutual active listening.

2. Fear and Uncertainty

Fear of loss, rejection, or further conflict are common during mediations. Parties may be hesitant to express their true feelings or needs due to fear of vulnerability or judgement. I help alleviate fear and uncertainty by providing clear guidance and reassurance throughout the process. By outlining the mediation process, setting expectations, addressing concerns and reminding the parties that they are empowered to come up with solutions in a safe forum, mediators can help parties feel more comfortable to participate fully.

3. Lack of Trust

Trust is essential for effective mediation, yet it can be challenging to establish, especially in high-conflict situations where parties come to the table with feelings of having been betrayed or wronged. Sometimes, the very purpose of the mediation is to rebuild that trust. I work towards rebuilding the trust between parties by creating a process they can trust, as a starting point. Also, by demonstrating impartiality, confidentiality, and empathy, and by inviting the parties to actively listen to each other’s perspective. I have found it common that parties have been unaware of each other’s perspective until they hear it for the first time during a mediation or read the other party’s mediation brief.

A mediator can skillfully validate concerns and reframe contentious issues in a neutral manner to foster trust and credibility. Sometimes though, as in the case of many employment disputes under litigation where there is no longer an active employment relationship, the purpose of the mediation is not to build trust for an ongoing relationship, but to work towards a resolution that puts an end to the existing litigation. By assisting the parties to stay focused on outcomes and evaluate their best alternative to a negotiated resolution, a mediation can be successful in reaching a lasting resolution of the issues even when the trust is not restored.

4. Resistance to Change

Embracing change can be daunting, especially when it involves letting go of deeply held beliefs, values, or expectations. Parties may resist proposed solutions out of fear of the unknown or reluctance to relinquish control. One of the very first mediations I did back in 1999 as a law student in Bogota involved a man who had loaned money to a woman. He went to see her several times per week to ask for the money back. She felt harassed and overwhelmed. When speaking to the man alone in a breakout room, he shared with me that those visits to discuss loan collection had become part of his routine. He was a retiree, and he was lonely. Any resolution meant his routine would change and he would have to let go of seeing the woman. He did not want change and his reluctance to change was a barrier to resolution. As a mediator, I can assist parties overcome resistance to change by reframing perspectives, exploring alternative options, asking questions and highlighting the potential benefits of resolution.

Emotional barriers are inherent in mediation, but they can be overcome. With the guidance of a skilled and empathetic mediator, parties can navigate their emotions, overcome obstacles, and find meaningful resolution to their conflicts.

Thinking about mediation? Forte Workplace Law has a growing mediation practice with mediators Sara Forte, Catalina Rodriguez and Jess Hadley. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.

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].

Employment Law

Mediation Myths

Thinking about mediation? There are many misconceptions and misunderstandings that can be a barrier to mediation. And many of them are myths! In my practice as counsel and a mediator, here are five common myths I hear regularly:

1. Agreeing to mediation is “a sign of weakness.”

It is not a sign of weakness to agree to mediate! No matter how strong your case is (as to the facts, the law, or the intensity of your emotions), a settlement in which you had a say is always better than a decision made by a judge months and months down the road, with piling legal fees. There are also mediations called on one party to the other via a Notice to Mediate. In that case, not attending a mediation has procedural consequences for your court case.

2. Mediations are only about money.

They can be about money, but most mediations are about more than that. There is no denying that some mediations can feel very transactional and can focus solely on an exchange of money offers. However, many meditations are truly transformative for those in attendance. Mediations of workplace conflict between colleagues make a significant difference to those involved, and they seldom include money exchanges.

3. What I say at a mediation might be used against me.

Not so! Discussions during mediation are confidential and the parties cannot rely on their exchanges further down the road as evidence of liability. The mediator will ask the parties to agree to confidentiality in the agreement to mediate.

4. The mediator might not think I have a good case.

The mediator will be a facilitator for the parties to reach a mutually agreed on settlement. Some mediators can assist the parties with an evaluation of the strength or weakness of their case. If the mediator is an expert in the area of the law, an evaluation of the parties’ case maybe very useful to assess risk and best and worst alternatives to a settlement. Yet, the mediator is not a judge and does not provide legal advice or make any decisions.

5. I have to sit in a room with the other side.

Not necessarily. Mediations can also take place in two different rooms (either physical rooms, or zoom rooms), with the mediator “shuttling” back and forth between the two rooms. A trauma-informed mediator will fully assess the best format with the parties in pre-mediation calls.

Thinking about mediation? Forte Workplace Law has a growing mediation practice. Contact us for details on our offerings and availability: [email protected] or call us 604-535-7063. This blog is not intended to serve as legal advice, and only provides general information.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.

Constructive Dismissal, Employer Policies, Employment Contract, Employment Law

How Do I Fire Someone Properly?

5 TIPS FOR EMPLOYEE TERMINATIONS

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: http://www.bchrt.bc.ca/human-rights-duties/characteristics.htm.

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.

Employment Law

What is Mediation?

Has your lawyer or employer suggested mediation of your legal case or conflict? Understanding what mediation is (and is not) is the first step to an informed decision.

Empowerment & Recognition

Mediation is generally defined as an informal process in which a neutral party with no power to impose a resolution helps the disputing parties try to reach a mutually acceptable settlement. While this quick definition describes the major features of the process, it does not in my view, fully account for the potential that mediation has of transforming people.

By the mediator helping the parties wrestle with difficult circumstances and bridge differences in the midst of conflict, mediation has the potential to provide the parties with a sense of empowerment and recognition. Empowerment comes from restoring the parties’ confidence in their ability to resolve their own issues. Recognition comes from the impartial listening by the mediator, and it is often the by-product of the process itself, when the parties acknowledge the view of each other.

A Day Dedicated to Sorting Things Out

My years of practice as in-house counsel, head of employee relations and lawyer in private practice, had me attend multiple mediations. On some, I have been counsel for one of the parties. On some, I have been a party. Recently, I started a mediation practice. What I enjoyed the most out of mediations as a party or counsel, is the fact that it is a day dedicated to sorting things out.

Lingering conflict finally has a forum – a time and a place – to be dealt with. And even when there was no settlement, much can be accomplished by understanding the other side’s view of the issues and uncovering the interests behind their requests. As a mediator, what I enjoy the most is the unfolding of interests and seeing the parties through to the other side of conflict. I particularly enjoy when creative and unexpected solutions are proposed, and when there are wholehearted efforts at reaching a settlement.

Mediators are Not Judges

One thing you will not get from a mediation is a decision by the mediator about who is right and who is wrong. Judges decide disputes and make decisions. Mediators facilitate negotiations and agreements between the parties. This is a key difference to understand before agreeing to mediate – there is no winner and no looser.

Catalina Rodriguez is a workplace investigator, mediator, and counsel to both employers and employees.