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termination of employee
Termination of Employment
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This guide is provided for your information and convenience only. It is not a legal
document. For complete information, refer to the Employment Standards Act,
2000 and its regulations.
See also: Termination Tool
Termination Pay
Mass Termination
The ESA does not require an employer to give an employee a reason why
his or her employment is being terminated. There are, however, some
situations where an employer cannot terminate an employee's
employment even if the employer is prepared to give proper written
notice or termination pay. For example, an employer cannot end
someone's employment, or penalize them in any way, if any part of the
reason for the termination of employment is based on the employee
asking questions about the ESA or exercising a right under the ESA, such
as refusing to work in excess of the daily or weekly hours of work
maximums, or taking a leave of absence specified in the ESA. Please see
the chapter on Reprisals.
Constructive Dismissal
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.
For example, an employee may be constructively dismissed if the
employer makes changes to the employee's terms and conditions of
employment that result in a significant reduction in salary or a significant
change in such things as the employee's work location, hours of work,
authority, or position. Constructive dismissal may also include situations
where an employer harasses or abuses an employee, or an employer
gives an employee an ultimatum to "quit or be fired" and the employee
resigns in response.
Temporary Layoff
An employee is on temporary layoff when an employer cuts back or stops
the employee's work without ending his or her employment (e.g., laying
someone off at times when there is not enough work to do). An employer
may put an employee on a temporary layoff without specifying a date on
which the employee will be recalled to work.
For the purposes of the termination provisions of the ESA, a "week of
layoff" is a week in which the employee earned less than half of what he
or she would ordinarily earn (or earns on average) in a week.
A week of layoff does not include any week in which the employee did not
work for one or more days because the employee was not able or
available to work, was subject to disciplinary suspension, or was not
provided with work because of a strike or lockout.
Employers are not required under the ESA to provide employees with a
written notice of a temporary layoff, nor do they have to produce a
reason. They may, however, be required to do these things under a
collective agreement or an employment contract.
Under the ESA, a temporary layoff can last:
A.
B.
more than 13 weeks in any period of 20 consecutive weeks, but less than
35 weeks of layoff in any period of 52 consecutive weeks, where:
or
a layoff longer than a layoff described in 'B' where the employer recalls an
employee who is represented by a trade union within the time set out in an
agreement between the union and the employer.
employed continuously for three months or more if the employer has given
the employee proper written notice of termination and the notice period has
expired;
or
an employer can terminate the employment of an
employee without written notice or with less notice than is required if the
employer pays termination pay to the employee.
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Notice Required
None
1 week
2 weeks
3 weeks
4 weeks
5 weeks
6 weeks
7 weeks
8 years or more
8 weeks
Note: Special rules determine the amount of notice required in the case
of mass terminations - where 50 or more employees are terminated at an
employer's establishment within a four-week period.
pay the employee the wages he or she is entitled to, which cannot be less
than the employee's regular wages for a regular work week each week.
Regular Rate
These are wages other than overtime pay, vacation pay, public holiday
pay, premium pay, termination pay and severance pay and certain
contractual entitlements.
Regular Work Week
For an employee who usually works the same number of hours every
week, a regular work week is a week of that many hours, not including
overtime hours.
Some employees do not have a regular work week. That is, they do not
work the same number of hours every week or they are paid on a basis
other than time. For these employees, the "regular wages" for a "regular
work week" is the average amount of the regular wages earned by the
employee in the 12 weeks in which the employee worked immediately
preceding the date the notice was given.
An employer is not allowed to reduce an employee's entitlement to wages
by scheduling an employee's vacation time during the statutory notice
period unless the employee--after receiving written notice of termination
of employment--agrees to take his or her vacation time during the notice
period.
If an employer provides longer notice than is required, the statutory part
of the notice period is the last part of the period that ends on the date of
termination.
Termination Pay
An employee who does not receive the written notice required under
the ESA must be given termination pay in lieu of notice. Termination pay
is a lump sum payment equal to the regular wages for a regular work
week that an employee would otherwise have been entitled to during the
written notice period. An employee earns vacation pay on his or her
termination pay. Employers must also continue to make whatever
contributions would be required to maintain the benefits the employee
would have been entitled to had he or she continued to be employed
through the notice period.
Regular work week
Sarah has worked for three and a half years. Now her job has been
eliminated and her employment has been terminated. Sarah was not
given any written notice of termination.
Sarah worked 40 hours a week every week and was paid $12.00 an hour.
She also received four per cent vacation pay. Because she worked for
more than three years but less than four years, she is entitled to three
weeks' pay in lieu of notice.
1.
2.
3.
4.
2.
3.
4.
Mass Termination
Special rules for notice of termination may apply when the employment of
50 or more employees is terminated at an employer's establishment
within a four-week period. This is often referred to as mass termination.
(Note: an "establishment" can, in some circumstances, include more than
one location.)
When a mass termination occurs, the employer must submit the Form
1 (Notice of Termination of Employment) to the Director of Employment
Standards before giving notice to the affected employees. Notice of mass
termination is not considered to be effective until the employer submits
this form.
In addition to providing employees with individual notices of termination,
the employer must post a copy of the Form 1 provided to the Director of
Employment Standards in the workplace where it will come to the
attention of the employees it affects on the first day of the notice period.
The amount of notice employees must receive in a mass termination is
not based on the employees' length of employment, but on the number of
employees who have been terminated. An employer must give:
2.
Recall Rights
A "recall right" is the right of an employee on a layoff to be called back to
work by his or her employer under a term or condition of employment.
This right is commonly found in a collective agreement.
An employee who has recall rights and who is entitled to termination pay
because of a layoff of 35 weeks or more may choose to:
keep his or her recall rights and not be paid termination pay at that time;
or
to work when requested to do so by the employer and the employee had his
or her employment terminated before October 1, 2012;
was hired for a specific length of time or to do a specific task. However,
completed; or
the term expires or the task is not completed more than 12
is employed in construction, this includes employees who are doing offsite work in whole or in part who are commonly associated in work or
collective bargaining with employees who work at the construction site;
has his or her employment terminated when he or she reaches the age of
retirement in accordance with the employer's established practice, but only if
the termination would not contravene the Human Rights Code.
is on a temporary lay-off
does not return to work within a reasonable time after being recalled to
work from a temporary layoff;
Wrongful Dismissal
The rules under the ESA about termination and severance of employment
are minimum requirements. An employee may choose instead to sue an
employer in a court of law for "wrongful dismissal." An employee cannot
sue an employer for wrongful dismissal and file a claim for termination
pay or severance pay with the ministry for the same termination or
severance of employment. The employee must choose one or the other
and may wish to obtain legal advice concerning their rights.