Fired without warning? Know your rights to termination notice in Ontario

Job security is not what it used to be. Terminations due to downturn in business are unfortunately quite frequent. In this blog we provide a brief overview of your rights upon termination, particularly regarding your right to advanced notice of termination and your right to receive payment in lieu of notice.

Entitlement to Notice in Advance of Termination

If you are an employee in Ontario, section 54 of the Employment Standards Act (2000) (the “ESA”) gives you the right to have a minimum amount of advanced notice before you are let go. The notice you are entitled to increases with your years of service to the employer. The purpose of this is to give the employee a little bit of time to prepare for their loss of employment and income.

If you have been employed for over 3 months but less than a year, you get 1 week. For between 1 and 3 years, you get two weeks. After 3 years, you get 3 weeks. You then get 1 additional week for each additional year of service up to a total of 8 weeks for 8 years+ of service.

During this notice period, you are still employed by the company and continue to receive your regular wage and benefits.

Pay Instead of Notice

According to section 61 of the ESA, your employer can terminate your employment immediately rather than keeping you at work during your notice period. The employer may only do this if they pay in a lump sum what you would have received had they kept you working during your notice period.

For example, if you had been working for the employer for 5 years and they terminated you without notice, the employer would have to give you 5 weeks pay. The employer would also be obligated to continue paying into any benefits plan that they were paying into on your behalf, and you would still have access to those benefits for the number of weeks you would have been entitled to notice.

Section 11(5) states that your employer has to give you this money no later than 7 days after termination or what would have been your next payday, whichever is longer.

What if I Do Not Have a Regular Work Week?

Deviations from the typical 9-5, 5-day work week are increasingly becoming the norm in our economy and the ESA accounts for this. Section 60(2) states that if you have an irregular work week or are paid on a basis other than time, you are entitled to the average amount of your regular wages that you received in the 12 weeks immediately previous to the day you were given notice of termination. So, if you are entitled to 3 weeks of notice and you made an average of $800 a week for the previous 12 weeks, you would be entitled to $2,400.

You Are Not Obligated to Sign Anything to Receive Your Termination Pay

A common tactic used by employers is to make receipt of termination pay conditional upon the terminated employee signing away their right to sue the employer for any actions associated with their termination. It is straightforwardly unlawful for an employer to deny you your termination pay or to make it conditional and if they do not give you the compensation you are entitled to within the time they are obligated to, you would potentially have a claim against them for damages

Exceptions

As is always the case in law, there are exceptions. Section 2(1) of Ontario Regulation 288/01 (which is a regulation attached to the ESA) lists the types of employees who do not qualify for notice or termination pay under the ESA. The list is long, so I will include some of the more relevant examples below:

• Employees who have been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer

• Construction employees

• Employees on a temporary lay-off

• Employees whose employment is terminated after refusing an offer of reasonable alternative employment with the employer, etc.

Other Sources of Payment on Termination

There are a number of other potential sources of compensation or extended notice you can receive if you are terminated. Severance pay and common law notice being chief among them, but explanations of these will have to be the topic of a future blog.

Keep in mind that your ESA rights are a floor, not a ceiling - many employees are owed more under common law or severance pay, so don't sign anything before getting advice.

More information? We’re here to help – litigation@wardlegal.ca

This WARDS LAWYERS PC publication is for general information only. It is not legal advice, nor is it intended to be. Specific or more information may be necessary before advice could be provided for your particular circumstances.