Some Questions Regarding Notice of Termination

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and responsibilities under the Act.

What is “termination of employment”?

Termination of employment is when an employee stops working for the employer. There are other words that mean the same as termination: “being let go”, “discharged”, “dismissed” or “fired”.

Can an employer terminate an employee?
 
Yes, under the Employment Standards Act an employer can terminate an employee at any time. But the Act says an employer must give an employee proper notice of termination or termination pay instead of notice.

Do employers have to follow rules about termination?

Under the Employment Standards Act, there are no specific rules or steps that employers have to follow, except for giving proper notice.

How much “notice” of termination should an employee get?

            It depends on how long the employee has been working for the employer:

                  

How long with employer                                   Notice Period or Termination Pay

            .           Less than three months                                                     0
            .           3 months, but under 1 year                                            1 week
            .           1 year, but under 3 years                                              2 weeks
            .           3 years, but under 4 years                                             3 weeks
            .           4 years, but under 5 years                                             4 weeks
            .           5 years but under 6 years                                              5 weeks
            .           6 years, but under 7 years                                             6 weeks
            .           7 years, but under 8 years                                             7 weeks
            .           8 years or more                                                            8 weeks
 
What should an employee get if his or her work is terminated?

   .    Proper written notice of termination
        An employee who has worked three months or more for an employer is entitled to written notice that states when the job will end.   
   .    Vacation Pay
         An employee, even if he or she has worked for an employer one day or less, may be entitled to get at least 4% of his or her total wages as vacation pay.
 
What if an employee does not get written notice?

  If an employee does not get written notice, then the employee should get termination pay instead. Termination pay is the pay and benefits that cover the period of notice that the employer was supposed to give the employee.
 
What happens after an employee gets written notice?

When an employee gets written notice, he or she must continue to work during the notice period. During this time the employer must pay the employee his or regular wages and any benefits that are normally paid to the employee and for the employee.
 When an employee gets proper written notice he or she does not get termination pay.

Do all employees get notice of termination or termination pay?

No, not all employees get notice of termination or termination pay. An employer does not have to give notice if the employee:
         .    is hired for specific task or period and is terminated the task is finished or the
              period is over.
         .    is fired for wilful misconduct, disobedience or wilful neglect of duty that was not
              trivial and not condoned by the employer.
         .    is doing construction work on site.
         .    has retired.
         .    has refused reasonable alternative work with his or her employer.
         .    has refused work available through a seniority system.
         .    does not come back from a layoff within a reasonable time when asked by his or
              her employer
         .    is free to decide when he or she wants to work, and can turn down work when it offered.
         .    is terminated during or as the result of a strike or lock out at an employee’s place of work
         .    An unexpected event – such as fire or flood- makes it impossible for the
              employer to keep an employee employed.
 
What if an employee is laid off instead of terminated?

The employer does not have to give written notice or other advance warning if the layoff is short term or temporary. Nor is there a requirement to tell employees why they are being laid off. The employer can lay off up to 13 weeks in any consecutive 20 weeks without specifying the return date. The employer may also be able to lay off for 35 weeks in any consecutive 52 weeks if the employee is receiving benefits.

What about employment Insurance?

Employment Insurance is not a provincial program and does not affect employee’s entitlement under the Act.

What about wrongful dismissal?

 Wrongful dismissal is not covered under the Employment Standards Act, and the Ministry of Labour does not handle wrongful dismissal. An employee who feels that he or she has been wrongfully dismissed may want to consult a lawyer and pursue the matter through the court system.

This information is provided for guidance only and should not be considered as a legal advice.If you have further questions regarding your entitlements under the Act, please send your questions by e-mail at esaconsulting@hotmail.com or by fax at (905) 331-1805.

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