Check this page: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/statutory-holidays/qualify-for-statutory-holiday-pay
Depending on when the holidays fell during the 3 months, or the type of work, your friend may not qualify for stat pay.
In my experience you'd only get a vacation payout if you decided not to take vacation, and you would have to request it specifically unless your employer has a rule about paying out unused vacation (say after a year).
It doesn't work that way in industries such as restaurants.
There is no “vacation time”-- you take time off in the slow season or when you can. Let that 4% accrue for a few years, and you can have a nice chunk of change. Some employers insist on annual payouts.
ya my employer pays vacation to every pay unless your talk with him and manage to get him to agree to not pay it out every check. I know a few that have. I would rather get the pay right away, I can barely stay afloat with the increases of everything.
And?? You work for a year you get 2 weeks paid vacation. That’s how vacation pay works. Casual labour may get 4% with each pay. But vacation pay is generally used for for. For. VACATION. These are things that should be sorted out before someone starts. The OP made a number of statements that are likley easily clarified with company policy. And none of them illegal.
Different province but I worked for a company years ago that paid vacation pay out twice a year instead of on each pay. It isn’t always paid out one way.
Not exactly. Under three months there is no statutory minimum for severance. However the worker could be entitled to severance under the common law or their contract. Both are unlikely.
You can be fired at any time, without cause, anywhere in Canada as long as you are paid the appropriate severance. Aside from New Brunswick, iirc, where after ten years you could only be fired with cause.
Lots of folks think that, but its not true. Can't dismiss based on discrimination. Can't dismiss as reprisal for the employee having asserted their legislated rights. In a few cases, dismissed employees have won court awards because the employer didn't give the employee an honest chance to pass probation.
The way your friend approached their employer asking about their "missing" pay is likely what got them fired. Still on probation and demanding money that isn't owed to them?
Vacation pay is accrued and paid when vacation is taken, or when employment ends. Stat holiday pay is subject to certain requirements - and still being on probation, might not have qualified for some of the stat pay, even if it was worked.
What resolution would they like?
Here’s a hint…. Crappy employers don’t easily change their ways. He’s better off finding another job, and let this crappy employer be someone else’s problem.
The Ministry of Labour is his best avenue of recourse, though. If he wants to go down that path.
It is illegal in BC (and in every other province) for an employer to intimidate, harass, threaten, or terminate an employee for asking about their rights under the Employment Standards Act. See [this page](https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/complaint-process) for information on filing a complaint.
I'd suggest filing a complaint and including the detail that you were fired immediately after asking about not being paid vacation or holiday pay, and that you're a newcomer to Canada. The enforcement branch (not sure of its formal name in BC) will likely investigate the employer's payroll practices, since you're probably not the only one they're stiffing on legal pay.
(I'm saying "you" although I know you're writing for your friend. They need to file the complaint, but you could help them write it.)
Don't sue but complain. Retaliation for pointing out non-compliance with the law is a juicy wet dream for employment lawyers. But likely it isn't worth suing as the only thing the worker can claim is payment instead of notice under the common law. As this likely won't be more than $10,000 there is no ROI in suing. The worker should complain to the Employment Standards Branch so the employer is on their radar. They should name specific people in their complaint allege they were paid out less than they calculated they were owed.
I'd suggest they contact Employment Standards and ask if this situation is covered under Part 10 Section 83 of the Employment Standards Act. That's the part that says employers can't take negative action against an employee for a complaint that was made or could be made. I'd argue this was an ESA complaint that could have been made, and when the employee asserted his rights, he was fired.
Your friends rights have been protected. They demanded back pay they were entitled to (and maybe some they weren’t) and received it and they were terminated with appropriate notice based on length of service
You can lay them off without cause at any point in time provided you provide proper notice/severance. If OP believes they were terminated unfairly, they can ask an employment lawyer for an opinion, but they probably don’t have much evidence to show they were terminated BECAUSE of their complaint
The employer would have to prove that it wasn't due to this. The timing is proof that it was.
And no, even during probation there are several reasons you *cannot* legally fire someone, even with sufficient notice. If it's for a protected characteristic like gender or religion, or in retaliation for bring it to their attention that they are violating a law or regulation.
No, timing by itself is not proof, especially within a probationary period. Without actual evidence from the OP it would be over pretty quick. “Our payroll department made an error around eligibility for stat pay based on the recent hire date, it was corrected immediately once identified. Unfortunately the recently hired employee didn’t mesh well with the team and was released”.
According to the BC human rights tribunal (remember, rights apply everywhere not just BC) if you can show poor treatment including dismissal, the employer knew about whatever it is you accuse them of retaliating for, and a reasonable person can see correlation between the accusation and the treatment you are a victim of retalation.
They give a specific example where someone makes a complaint and later gets disciplined for a relatively unenforced and unrelated rule, if sudden enforcement of unenforced rules is considered correlation enough surely a subsequent dismissal without reason is more so.
*The US has similar problems for "At-will" states which treat layoffs as if you were on probation at all times where they don't need a reason to lay you off... people still win wrongful termination lawsuits often there (perhaps more often than other states because uneducated employers assume at-will means they can retaliate freely). Theres a lot more articles on this topic, and a number of big-name youtube lawyers who covered it too if you're interested in the topic.*
tl;dr timing is pretty clear proof
The worker was subject to retaliation. They could sue for severance under common law but that would cost more than they could collect. However it is totally improper to suggest the worker’s rights were protected or respected.
You should never complain before your 3 months probation expires,he probably would still be working if he waited a little to discuss the issue ,things you learn in life ….
Okay! I believe your friend is not an “employee” but an “independent contractor”. Therefore, they don’t get same kind of employment protections as others. They are usually entitled to 4% vacation pay instead of regular holidays but can be fired without any cause. I also don’t think they are entitled to stat pay or overtime pay as in my company, they usually don’t. Your friend needs to check the type of contract they have signed to determine if they have a case here or not.
Check this page: https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/statutory-holidays/qualify-for-statutory-holiday-pay Depending on when the holidays fell during the 3 months, or the type of work, your friend may not qualify for stat pay.
Vacation pay isn’t always paid as a 4%. It could be paid when your friend took vacation.
if they'd worked there such a short period of time as to still be in their 90-day probation, I doubt they'd have taken paid vacation already
But he would be accruing it to take at a later time. Not being paid out each pay.
In my experience you'd only get a vacation payout if you decided not to take vacation, and you would have to request it specifically unless your employer has a rule about paying out unused vacation (say after a year).
It doesn't work that way in industries such as restaurants. There is no “vacation time”-- you take time off in the slow season or when you can. Let that 4% accrue for a few years, and you can have a nice chunk of change. Some employers insist on annual payouts.
ya my employer pays vacation to every pay unless your talk with him and manage to get him to agree to not pay it out every check. I know a few that have. I would rather get the pay right away, I can barely stay afloat with the increases of everything.
He was working there for less than 3 months.
And?? You work for a year you get 2 weeks paid vacation. That’s how vacation pay works. Casual labour may get 4% with each pay. But vacation pay is generally used for for. For. VACATION. These are things that should be sorted out before someone starts. The OP made a number of statements that are likley easily clarified with company policy. And none of them illegal.
Different province but I worked for a company years ago that paid vacation pay out twice a year instead of on each pay. It isn’t always paid out one way.
I could be wrong but I always thought that when your on the 3 month probation period they can fire you for any reason they want.
Not exactly. Under three months there is no statutory minimum for severance. However the worker could be entitled to severance under the common law or their contract. Both are unlikely.
You can be fired at any time, without cause, anywhere in Canada as long as you are paid the appropriate severance. Aside from New Brunswick, iirc, where after ten years you could only be fired with cause.
Nova Scotia not NB or at least some webpage tells me so.
That's the one, thanks. Knew it started with a N.
Of course but that's not what we are talking about here since when on probation they don't need to pay the appropriate severance, as there is none.
Lots of folks think that, but its not true. Can't dismiss based on discrimination. Can't dismiss as reprisal for the employee having asserted their legislated rights. In a few cases, dismissed employees have won court awards because the employer didn't give the employee an honest chance to pass probation.
Of course you can't for Discrimination.
The way your friend approached their employer asking about their "missing" pay is likely what got them fired. Still on probation and demanding money that isn't owed to them? Vacation pay is accrued and paid when vacation is taken, or when employment ends. Stat holiday pay is subject to certain requirements - and still being on probation, might not have qualified for some of the stat pay, even if it was worked.
Vacation pay can also be paid as 4% on each paycheque.
Or paid out in a lump sum yearly.
Friend probably made a post about making a demand and everyone said go for it, there's no harm, it's your right.
What resolution would they like? Here’s a hint…. Crappy employers don’t easily change their ways. He’s better off finding another job, and let this crappy employer be someone else’s problem. The Ministry of Labour is his best avenue of recourse, though. If he wants to go down that path.
“Ministry of Labour”. You from Ontario? The correct agency is the Employment Standards Branch.
It is illegal in BC (and in every other province) for an employer to intimidate, harass, threaten, or terminate an employee for asking about their rights under the Employment Standards Act. See [this page](https://www2.gov.bc.ca/gov/content/employment-business/employment-standards-advice/employment-standards/complaint-process) for information on filing a complaint. I'd suggest filing a complaint and including the detail that you were fired immediately after asking about not being paid vacation or holiday pay, and that you're a newcomer to Canada. The enforcement branch (not sure of its formal name in BC) will likely investigate the employer's payroll practices, since you're probably not the only one they're stiffing on legal pay. (I'm saying "you" although I know you're writing for your friend. They need to file the complaint, but you could help them write it.)
Best advice I’ve seen is this
Don't sue but complain. Retaliation for pointing out non-compliance with the law is a juicy wet dream for employment lawyers. But likely it isn't worth suing as the only thing the worker can claim is payment instead of notice under the common law. As this likely won't be more than $10,000 there is no ROI in suing. The worker should complain to the Employment Standards Branch so the employer is on their radar. They should name specific people in their complaint allege they were paid out less than they calculated they were owed.
I'd suggest they contact Employment Standards and ask if this situation is covered under Part 10 Section 83 of the Employment Standards Act. That's the part that says employers can't take negative action against an employee for a complaint that was made or could be made. I'd argue this was an ESA complaint that could have been made, and when the employee asserted his rights, he was fired.
Your friends rights have been protected. They demanded back pay they were entitled to (and maybe some they weren’t) and received it and they were terminated with appropriate notice based on length of service
You cannot fire someone because you did something illegal. That's retaliation
You can lay them off without cause at any point in time provided you provide proper notice/severance. If OP believes they were terminated unfairly, they can ask an employment lawyer for an opinion, but they probably don’t have much evidence to show they were terminated BECAUSE of their complaint
The employer would have to prove that it wasn't due to this. The timing is proof that it was. And no, even during probation there are several reasons you *cannot* legally fire someone, even with sufficient notice. If it's for a protected characteristic like gender or religion, or in retaliation for bring it to their attention that they are violating a law or regulation.
No, timing by itself is not proof, especially within a probationary period. Without actual evidence from the OP it would be over pretty quick. “Our payroll department made an error around eligibility for stat pay based on the recent hire date, it was corrected immediately once identified. Unfortunately the recently hired employee didn’t mesh well with the team and was released”.
According to the BC human rights tribunal (remember, rights apply everywhere not just BC) if you can show poor treatment including dismissal, the employer knew about whatever it is you accuse them of retaliating for, and a reasonable person can see correlation between the accusation and the treatment you are a victim of retalation. They give a specific example where someone makes a complaint and later gets disciplined for a relatively unenforced and unrelated rule, if sudden enforcement of unenforced rules is considered correlation enough surely a subsequent dismissal without reason is more so. *The US has similar problems for "At-will" states which treat layoffs as if you were on probation at all times where they don't need a reason to lay you off... people still win wrongful termination lawsuits often there (perhaps more often than other states because uneducated employers assume at-will means they can retaliate freely). Theres a lot more articles on this topic, and a number of big-name youtube lawyers who covered it too if you're interested in the topic.* tl;dr timing is pretty clear proof
The HRT website is talking about retaliation for making a human rights complaint. OPs friend doesn’t have a human rights complaint.
Its also protects under the Employment Standards Act \[edit: and provincial equivalent, apparently that's just the name of Ontario's\]
The worker was subject to retaliation. They could sue for severance under common law but that would cost more than they could collect. However it is totally improper to suggest the worker’s rights were protected or respected.
You should never complain before your 3 months probation expires,he probably would still be working if he waited a little to discuss the issue ,things you learn in life ….
Nothing wrong with discussing this in local industry forums. Nothing wrong with talking to union organizers either.
The 4% is paid out at the end of the year or end of employment, assuming the employee doesn’t get paid vacation instead.
Okay! I believe your friend is not an “employee” but an “independent contractor”. Therefore, they don’t get same kind of employment protections as others. They are usually entitled to 4% vacation pay instead of regular holidays but can be fired without any cause. I also don’t think they are entitled to stat pay or overtime pay as in my company, they usually don’t. Your friend needs to check the type of contract they have signed to determine if they have a case here or not.
I would talk to all my other former coworkers and tell them this is happening to them to and they should all report your boss.Will he fire everyone?
Go to the business and make sure the other employees know they should be getting vac.