Employment standards are enforced under the Employment Standards Act, 2000 (ESA) for provincially regulated employment and the Canada Labour Code, 1985 (CLC) for federally regulated employment. Both of these Acts set out the minimum standards that employers and employees must follow. Termination of employment and the notice required to do so varies based on the legislation that governs the job in question.
Employment Standards Act (provincial)
The standards set out by the ESA will apply to an employee if his or her work is to be performed in Ontario, or if the work performed outside the province is a continuation of work performed in Ontario. There are a few exceptions to this. For example inmates working in a correctional facility or an individual working under a program approved by a college of applied arts and technology or a university are not subject to the provisions of the ESA even if their work is completed in Ontario. Please contact the employment lawyers at Daniel & Partners LLP if you have questions as to whether the ESA applies to your employment or not.
Notice of Termination (or Pay in Lieu of Notice)
Section 56 of the ESA sets out what is considered to be a termination. As such, termination occurs in the following circumstances: (1) when the employer dismisses the employee or is unable or refuses to continue employing them, (2) when the employer constructively dismisses the employee and the latter then resigns from his or her employment within a reasonable amount of time, (3) when the employer lays the employee off for a period of time longer than what is considered temporary layoff. The ESA also makes provisions for what is considered a temporary layoff and this depends on a number of factors including the number of weeks worked, as well the continued relationship between employer and employee.
When an employer ends the employment of a person who has been continuously employed for three months, the employer must provide the employee with either a written notice of termination, termination pay or a combination of the two. A combination of a notice and termination pay can be given as long as they equal the length of notice the employee is entitled to receive. The notice period required is set out in section 57 of the ESA and is essentially determined by the amount of years employed by your employer. In short, you are given one week notice for every year of service up to a maximum of 8 weeks. Additionally, during such notice period, the employer cannot reduce the employee’s wage rate or alter the terms and conditions of employment.
|Period of Employment||Notice Required|
|Less than 1 year||1 week|
|1 year but less than 3 years||2 weeks|
|3 years but less than 4 years||3 weeks|
|4 years but less than 5 years||4 weeks|
|5 years but less than 6 years||5 weeks|
|6 years but less than 7 years||6 weeks|
|7 years but less than 8 years||7 weeks|
|8 years or more||8 weeks|
Under section 60 and 61 of the ESA, an employer is required to continue to make any benefit plan contributions required to maintain the benefits to which the employee would have been entitled to until the end of statutory notice period or if they had continued to be employed during the notice period. Also, if the employer fails to contribute to a benefit plan for the amount of time required, an amount equal to what the employee was entitled to will be considered unpaid wages.
Aside from notice of termination and termination pay, some employee’s may be entitled to severance pay. This is a form of compensation that is paid to a qualified employee who has had their employment “severed”. It compensates an employee for losses that occur when a long-term employee loses their job.
Similarly to section 56 of the ESA setting out what constitutes termination, section 63 establishes that severances occurs in the following situations: (1) when the employer dismisses or stops employing the employee, (2) when the employer constructively dismisses the employee and the latter then resigns from their employment within a reasonable amount of time, (3) when the employee is laid off for 35 weeks or more in a period of 52 consecutive weeks, (4) when the employee is laid off because all the business at an establishment closes permanently or (5) when the employer gives the employee written notice of termination and the employee resigns after giving two weeks’ written notice, and the resignation takes effect during the statutory notice period. For the purpose of the third situation, an employee who has a regular workweek is laid off when in a week they receive less than one-quarter of the wages they would have earned at their regular rate in a regular week.
In order to be entitled to severance pay, the employee must have been employed by the employer for 5 years or more. Moreover, the employer must have a payroll of at least $2.5 million annually, or the employer has severed the employment of 50 or more employees because all or part of the business permanently closed. Under the ESA, severance pay is one week per year of service to a maximum of 26 weeks. Severance pay has to be paid out in lump sum, and cannot be provided with working notice.
It is important to note that the provisions under the ESA are minimum requirements. Employees have rights under the common law and some have rights under other legislation that give them greater rights than notice of termination (or termination pay) and severance pay under the ESA. If you have been fired from your job in the Niagara Region please call one of the employment lawyers at Daniel & Partners LLP so that we can review and confirm whether you have received all of the compensation and benefits you are entitled to at law.
Canada Labour Code (federal)
The Canadian Labour Code (CLC) establishes the standards that are applicable to an employee that works for an employer within the legislative authority of Parliament. A few examples of federally regulated sectors include railways, cross-province ferries, aerodromes, radio broadcasting stations, etc. However, working in a particular industry is not conclusive as to what minimum statutory scheme applies and you should contact the employment lawyers at Daniel & Partners LLP to confirm whether the ESA or the CLC applies to you.
In comparison with the ESA, the CLC establishes that after working for an employer consecutively for 3 months; termination requires either (1) two weeks’ notice or (2) two weeks’ wages at the employee’s regular salary. Federally regulated employment is not subject to notice based on the amount of time worked for an employer – all employees are required to get two weeks’ notice or two weeks’ wages after working for 3 consecutive months. Similarly to the ESA, the CLC does not allow employers to modify wages or work conditions after a termination notice is given.
Both provincial and federal legislations regarding employment standards establish worker’s and employer’s rights in regards to sick leave, pensions, work-related injuries or illnesses, etc. These situations include multiple exceptions and the pertinent legislation should be looked at closely when considering if there was unjust termination in a specific situation.
Common Law Entitlements
The notice periods set out in the ESA and CLC are only minimums. The Courts have consistently held that, in most circumstances, employees are entitled to notice of termination in excess of the minimum statutory standards.
In determining the notice to which employees are entitled (or pay in lieu thereof), the Courts consider several factors including: length of employment; training and experience required to fill the position; responsibility attached to the position; character of the employment (e.g. physical labour, managerial work); availability of equivalent alternative employment; employee’s relevant education, training and experience; the employee’s age; if there was inducement to leave another job and the availability of similar employment, having regard to the experience, training and qualifications of the employee. Other factors that can be held in consideration are the way the employee was dismissed, the conduct of the employer and employee both before and after the termination, as well as existing provisions in the employment contract with regards to termination.
As a result, if you have been fired from you job, it is possible that are you entitled to more in terms of compensation than the minimum. This is even if your contract states that you are only entitled to the statutory minimums! This is because the Courts have invalidated all but the most carefully worded limitation clauses to protect employees. The wrongful dismissal lawyers at Daniel & Partners LLP are here to help you fight for your maximum entitlements under the law, so contact us today if you have been fired from you job in the Niagara Region.
Our expertise at Daniel & Partners LLP encompasses all areas of non-union employment law, from the perspective of both the employer and employee. We have experience acting for clients on issues such as employment contracts, wrongful and constructive dismissals, reasonable notice of termination or pay in lieu of notice, severance payments, and other claims arising out of the employer-employee relationship, including Human Rights complaints.
Daniel & Partners LLP also helps employers navigate the increasingly complicated laws affecting their responsibilities, and provide practical advice for developing programs and policies that limit risk. We help employees understand and pursue their rights when there is a dispute or their employment has been terminated.
Blog post written by Brianna Mayes, summer student.
 A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s actual or implied consent.