What Should I Do After Being Fired?
May 9, 2022
Employment Law & Employment Standards Act
What Should I Do After Being Fired?
Have you been fired, dismissed, or terminated? Or informed by your employer that your job is about to change, or end if you do not agree to the change? Have you experienced harassment or discrimination at work?
If yes, we think you might have a bunch of questions, and we are here to help. Below are a number of informational articles to help you figure out where to start; please check these out, and then let us know if you would like our help.
We recommend reading the following articles as well in order to get a better picture of your options:
What Legal Options Do I Have After Being Wrongfully Dismissed?
If you think your employer breached your legal rights by firing you, you may have multiple legal options available. Generally speaking, wronged parties have two (2) years from the date of the wrong to bring a civil action in court; if you were terminated recently, you still have time to decide whether you would like to pursue an action. We recommend diarizing for twelve (12) and eighteen (18) months from your termination date for you to re-evaluate your circumstances if you decide not to proceed right away.
If your matter includes any component which may involve the Employment Standards Branch you only have 6 months to file a complaint. For Human Rights Tribunal issues, such a complaint needs to be formally submitted within the first 12 months.
Once your claim is filed with the appropriate decision making body, how long your matter will take to resolve is largely a function of how quickly scheduling the various required steps can happen. While it is entirely possible, and even highly likely, for your matter to resolve without appearing before a judge, if your matter will require the decision of a judge, you should be prepared for the resolution to be more than one (1) year away.
Importantly, even once the formal actions have been started, settlement at any time is always an option provided the parties can agree on terms.
Am I Obligated to find a Replacement Job?
When you pursue your prior employer for severance, you have an obligation to make reasonable efforts to seek and secure comparable replacement employment; this is called the duty to mitigate. Failing to fulfill your duty to mitigate can impact how much severance you may be able to recover. If you have questions on how much severance you may be owed, please see our article How much Severance am I Owed?
Importantly, along with your duty to mitigate, also comes the principle of set-off. To understand how set-off works, please see our information below on What is Set-Off and How Does it Work? It is important not to shirk your duty to mitigate in an effort to avoid the set-off that will come with successful mitigation.
Ultimately, most people are happier to be employed and earning an income rather than being involved in a law suit with a prior employer; so even though you might feel like you want your prior employer to pay you the maximum severance amount, we encourage our clients to think about the long run, and an overall positive result.
What Is Set-Off And How Does It Work?
If you receive any replacement income during the notice period, your prior employer is relieved of its obligation to you accordingly, up to the amount that you would have received had you continued to be employed by you prior employer through the notice period; this includes any income you may receive from replacement employment. To understand the notice period better, please see our explanatory notes on What is the notice period?
If your replacement income falls short of what you would have received from your prior employer had you continued to be employed with it through the notice period, your prior employer’s obligation is to top up your income such that there is no material difference between your new wage and your old wage.
Importantly, if your replacement income exceeds the income you would have received from your prior employer, your prior employer is relieved of any obligation to you as severance will no longer be owed. To understand how severance is calculated, please see our article on How much severance am I owed?
Replacement income can come from any number of sources, but the most common one is income received as a result of obtaining a replacement job. We think the following simplified example will help:
Example - Facts:
• Wage with prior employer: $20/hr
• Wage with new employer: $15/hr
• Notice period: 3 months (What is the Notice Period?)
• New job obtained after 1 month of unemployment
• Assume the same number of hours per week are worked with the new employer as with your prior employer
In this example, assuming your claim for severance would be successful, your prior employer would be obligated for the first month of the notice period at your full wage of $20/hr, but from the time you start with your new employer, at the wage of $15/hr, your prior employer’s obligation reduces to only the $5/hr difference between your old wage and new wage.
Please see our article on How much severance am I owed for more.
Will Future Employers Know Why My Last Job Ended? Do I Have To Tell Them?
Future employers will only know the circumstances surrounding the end of your last job if someone tells them. In most circumstances, you will not have any obligation to tell any future employer about the particulars of how or why your last job ended.
When your prior employer issues the Record of Employment, that document is available to your prior (issuing) employer, you, and Service Canada; the Record of Employment is not a document that a future employer would be able to search for, or request, in the course of its decision to interview or hire you.
While it is rare, sometimes people make unfavourable communications about other people following the end of an employment relationship. Not only is saying, writing, or otherwise communicating negatively about someone else inappropriate, it also can result in the creation of a legal claim relating to defamation.
We remind all employees that no matter how unpleasant the end of an employment relationship may be, to take the high road and move past the unpleasantness and onto more positive things.
However, if you come to know that you are the subject of personal character damaging communications, and have or can acquire evidence of this, please let us know and we will be pleased to assist you in resolving the situation.
Employment Lawyers Advising Workers
We're on Your Side - Our skilled team of employment & labour lawyers have an outstanding reputation throughout the Lower Mainland and the Fraser Valley, and are dedicated to helping you resolve employment issues in the most efficient manner possible. If you have any questions or need assistance please reach out to our team today by submitting a Contact form.
FAYME K. HODAL
Fayme K Hodal and her team assist clients with all Employment law matters, including wrongful and constructive dismissals, dismissals for cause, executive compensation and buy-outs, and negotiation of severance packages.
Fayme has extensive experience working with individual, business and corporate clients throughout British Columbia and Alberta. She regularly advises on civil disputes of all varieties and prepares coverage opinions relating to private insurance disputes.
Fayme also assists clients with privacy law and defamation questions.
Fayme is a life-long West Coast local; she obtained her...
Have questions? Need insight? Our team can assist you in examining your options and determining which path best suits your needs.
Disclaimer: the information you obtain at this site is not, nor is it intended to be, legal advice. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create a lawyer-client relationship. Please do not send any confidential information to us until such time as a lawyer-client relationship has been established. By checking this box you agree to receive communications from KSW Lawyers, which may include quarterly email Newsletters containing legal updates (may easily unsubscribe at any time).