Ontario, Canada, does not require ‘dismissals’ to be fair.  No reason or procedure is required and termination pay is capped at 8 weeks.  Notice is forfeited for gross misconduct.  In other words no need for any ‘just cause’.  Read the full article: Termination of employment.

The Employment Standards Act, 2000 (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 other 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.

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Certain employees are not entitled to notice of termination or termination pay under the ESA.  Examples include:

  • employees who [engage in] wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.
  • Other examples include construction employees, employees on temporary layoff, employees who refuse an offer of reasonable alternative employment and employees who have been employed less than three months.

There are a number of other exemptions to the termination of employment provisions of the ESA.

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Written Notice of Termination

An employee is entitled to notice of termination (or termination pay instead of notice) if he or she has been continuously employed for at least three months.  A person is considered “employed” not only while he or she is actively working, but also during any time in which he or she is not working but the employment relationship still exists (for example, time in which the employee is off sick or on leave or on lay-off).

The amount of notice to which an employee is entitled depends on his or her “period of employment”.  An employee’s period of employment includes not only all time while the employee is actively working but also any time that he or she is not working but the employment relationship still exists, with the following exceptions:

if a lay-off goes on longer than a temporary lay-off, the employee’s employment is deemed to have been terminated on the first day of the lay-off—any time after that does not count as part of the employee’s period of employment, even though the employee might still be employed for purposes of the “continuously employed for three months” qualification;

if two separate periods of employment are separated by more than 13 weeks, only the most recent period counts for purposes of notice of termination.  It is possible, in some circumstances, for a person to have been “continuously employed” for three months or more and yet have a period of employment of less than three months.  In such circumstances, the employee would be entitled to notice because an employee who has been continuously employed for at least three months is entitled to notice, and the minimum notice entitlement of one week applies to an employee with a period of employment of any length less than one year.

Notice of termination

Amount of notice required if an employee has been continuously employed for at least three months, from 1 week notice to a maximum of 8 weeks for 8 years or more period of employment.

How to Provide Written Notice

In most cases, written notice of termination of employment must be addressed to the employee.  It can be provided in person or by mail, fax or e-mail, as long as delivery can be verified.

There are special rules for providing notice of termination if an employee has a contract of employment or a collective agreement that provides seniority rights that allow an employee who is to be laid off or whose employment is to be terminated to displace (“bump”) other employees.

In that case, the employer must post a notice in the workplace (where it will be seen by the employees) setting out the names, seniority and job classification of those employees the employer intends to terminate and the date of the proposed termination.  The posting of the notice is considered to be notice of termination, as of the date of the posting, to an employee who is “bumped” by an employee named in the notice.  However, this notice of termination must still meet the length requirements set out in the ESA.

There are also special rules regarding how notice is provided when there is a mass 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.

Wrongful Dismissal

Rights Greater than ESA Notice of Termination, Termination Pay, Severance Pay

The rules under the ESA about termination and severance of employment are minimum requirements.  Some employees may have rights under the common law or other legislation that give them greater rights than notice of termination (or termination pay) and severance pay under the ESA; because such rights generally cannot be enforced under the ESA, some employees may want to sue their former employer in court for “wrongful dismissal” or pursue other options.  Employees should be aware that they 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, an employee must choose one or the other.  Employees may wish to obtain legal advice concerning their rights.