There are a number of factors to keep in mind when terminating an employee for cause or other reasons. The following section outlines important considerations when preparing for, conducting and following the termination of an employee.
An employer can terminate an employee at any time, for any reason, provided that the reasons are not based on a discriminatory ground as set out by the British Columbia Human Rights Code. Protected characteristics include race, colour, ancestry, place of origin, political belief, religion, marital status, family status, physical or mental disability, sex (include pregnancy), sexual orientation, age, or because a person has been convicted of a criminal or summary conviction offence that is unrelated to the employment or to the intended employment of that person.
If an employee is terminated without cause, the employee is entitled to notice of termination. Details on notice are set out in greater detail below.
If an employee is terminated for cause, the employee is not entitled to notice of termination. Employment may be terminated for cause after other disciplinary measures have been unsuccessful in correcting unacceptable conduct and/or performance, or when a first time incident occurs that is illegal or otherwise very serious in nature. Some examples of conduct or performance that might constitute just cause include but are not limited to:
- Intentional harassment.
- Instigating a fight on company property.
- Consuming or distributing illegal drugs on company property.
- Intentional destruction of property.
- Willful disobedience and/or failure to comply with safety rules and company policies.
In the case of terminating an agreement with an independent contractor, termination would be carried out in accordance with the terms of the contract.
1. Preparing for Termination
If you are considering terminating an employee, it is strongly advised that you consult with your GPSC Liaison and seek counsel from a lawyer or HR professional. In preparation, it is recommended that you:
Determine if termination will be with or without just cause:
- If with just cause, consider seeking legal advice in advance to assess just cause and prepare termination documentation.
- If without cause, determine if want to provide working notice or terminate immediately.
Determine employee’s eligibility for notice or pay in lieu according to the BC Employments Standards Act (which requires that employees who are terminated without cause receive written notice or compensation based on their length of service), common law, or pursuant to the terms of any employment contract if equal to or greater than the minimum required by the Act. See Determining Your Termination Obligations.
Determine if you want to provide additional severance pay in addition to the minimum required by the Employment Standards Act. You may want to consider providing additional severance pay in exchange for a Release to ensure that the employee does not later bring a claim against the employer arising from their employment or the cessation of their employment. A lawyer or HR professional may provide you with an assessment of whether a Release would be beneficial and the amount of additional severance pay that would be appropriate. If you only provide the minimum notice required by the Employment Standards Act, you cannot require the employee to sign a Release.
Prepare the following documents in advance to present at the meeting:
- Employee Termination letter with additional offer OR no additional offer.
- Final pay-cheque up to the last day of employment, including payment for any accrued but unused vacation entitlement. If the cheque is not available that day, it should be provided to the employee within 48 hours after the last day a terminated employee works.
- Employee Release and a self-addressed stamped envelope to return the Release.
For working notice, ensure employee does not work after the notice period ends or the notice is of no effect. Further, monitor the employee’s performance during any working notice period. If the employee commits misconduct during this period (including neglecting his or her duties), the organization may be able to terminate immediately without further notice if the misconduct constitutes just cause. Employees on working notice are expected to continue to perform their duties diligently.
If termination is to be immediate, plan ahead to:
- Confirm if the planned date of termination has any special significance for the employee (birthday, anniversary, etc.) and change the date accordingly.
- Address potential security concerns (changing passwords, voice message, bank access, etc.), and prepare accordingly should the employee become violent.
- Have a box available for employee to gather his/her belongings.
- Prepare a list of items to be returned, in particular those that relate to security (e.g., keys, pass cards, passwords).
Prepare a script to guide the termination conversation, ensuring it is clear to the employee that the decision is firm and irrevocable. The content of your message and how you phrase it depends on the reason for termination. Contact your GPSC Liaison for sample terminations scripts with guidance on responding to questions.
Contact the Provincial Divisions Office to arrange for changes to email, website and DivIT access. See Technology Considerations for Exiting Employees.
Prepare communications for immediate release to other team members, board and key stakeholders. Exercise caution with internal and external email communications concerning the reason for the employee’s departure. The reasons for an employee’s termination are personal information which should not be shared.
Establish an interim reporting structure when a senior position is terminated.
Consider whether you are prepared to provide a reference for future employers and what you are prepared to say. The safest course of action is to only commit to providing a reference letter which only sets out the employee’s position, duties, and dates of employment and to restrict reference requests to the information contained in that letter. Determine who in the company will handle reference requests, which should only be one person, preferably a supervisor or someone in Human Resources.
- Determining Your Termination Obligations*
- Employee Release Template*
- Employee Termination Letter with no additional offer*
- Employee Termination Letter with additional offer*
- Employee Termination Script*
- Technology Considerations for Exiting Employees*
* To access these tools, please connect with your GPSC Liaison.
2. Conducting the Termination
The following are general suggestions to assist with the termination process:
Note: termination process applies to a termination without working notice. If someone is given working notice, they would not be asked to leave immediately.
Have the letter confirming the decision and the details of severance pay, together with the release (as appropriate) in a sealed envelope.
Conduct the termination in the employee’s office or a neutral site, ideally at the end of the day, preferably when other employees have left, and at the beginning of the week. This provides the employee with the opportunity to seek counsel (lawyer, financial advisor, etc.).
Have two senior persons present for the termination, one of whom will be the spokesperson.
Keep the termination meeting as short as possible.
Refrain from engaging in any detailed discussion about the reasons for the termination with the employee. Employees may have difficulty remembering the discussion accurately, and could become defensive and argumentative.
Request that all Division belongings are returned immediately or by a specified date if not readily available. Pre-arrange a time and place to meet as appropriate. Prepare a list to guide you and provide to the employee.
Provide the employee with a box and invite the employee to gather his/her belongings immediately, or offer to do it at a later date.
Ensure that the employee leaves the building without providing the appearance that the employee is being forcibly escorted out of the building.
Make arrangements for the employee to get home safely. Arrange and pay for a cab if necessary.
Do not ask the employee to sign the release immediately. Inform the employee that you do not want them to sign right away and encourage them to take time to consider the release and seek independent legal advice prior to signing it.
3. Following Termination
Make notes about the meeting immediately thereafter in case any litigation ensues.
Meet with remaining team members to answer “now what?” Share any new reporting structure and provide reassurance while maintaining confidentiality of the terminated employee and the process.
Send communications and/or set up meetings as appropriate to notify any other team members, the board and key stakeholders.
Prepare Record of Employment.
If you are willing to provide a reference, ensure that the person assigned to give the reference is aware of what they may share with employers who request a reference.