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Wrongful termination and the independent contractor

Understanding British Columbia labour and employment law can be a complicated matter. For example, individuals may find it surprisingly difficult to ascertain whether one is an "employee" in the eyes of the law. As it turns out the difference between being an employee and being an independent contractor can be subtle. Those subtle differences may be very important should a wrongful termination suit hang in the balance.

The BC Employment Standards Act covers rights and responsibilities of employees in BC. For example, the Act outlines the process that an employer must follow if they want to terminate the employment of one of their employees, and how much notice they are legally required to give that employee (or pay in lieu of notice). Independent contractors are not protected by the Act. For that reason, some employers may try to skirt their obligations under the Act by declaring an employee to be an independent contractor.

Simply declaring a worker to be an independent contractor does not make it so, even if the worker agrees to the designation. The circumstances of the employment relationship are determinative in defining whether the individual is an employee or an independent contractor. Some of the factors commonly attributed to independent contractors are not necessarily defining, including submitting invoices for wages, charging GST or providing his or her own tools. There are several tests that may be used in court to determine the status of a worker, such as whether the person has his or her own business and clients, and whether he or she incurs any risk of profit or loss.

Understanding one's relationship with the person or entity from which one receives income may be vital to any employment issues that might arise, such as a potential case of wrongful termination. Due to the complexity of the situation, it may be wise to speak with an experienced lawyer before taking action. A lawyer who works with British Columbia employment law every day can help make sense of the most complex matters.

Source: gov.bc.ca, "Employee or Independent Contractor Factsheet", Accessed on April 19, 2017

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