What is Reasonable Notice of Termination of Employment?

by Karen Zvulony

The amount of notice an employee is entitled to when fired from a job without just cause is dependent on a number of factors. The Ontario Employment Standards Act provides minimum notice periods. Notice periods under the common law are usually longer.

Notice Under The Ontario Employment Standards Act

The Ontario Employment Standards Act provides the minimum notice period that an employee is entitled to based on the length of employment, the Ontario Employment Standards Act also allows for pay instead of notice and, if applicable, severance pay.

Below is an outline of the applicable sections of the Employment Standards Act.

Under to section 57 of the Ontario Employment Standards Act, an employee is entitled to the following notice periods:

(a) at least one week before the termination, if the employee’s period of employment is less than one year;
(b) at least two weeks before the termination, if the employee’s period of employment is one year or more and fewer than three years;
(c) at least three weeks before the termination, if the employee’s period of employment is three years or more and fewer than four years;
(d) at least four weeks before the termination, if the employee’s period of employment is four years or more and fewer than five years;
(e) at least five weeks before the termination, if the employee’s period of employment is five years or more and fewer than six years;
(f) at least six weeks before the termination, if the employee’s period of employment is six years or more and fewer than seven years;
(g) at least seven weeks before the termination, if the employee’s period of employment is seven years or more and fewer than eight years; or
(h) at least eight weeks before the termination, if the employee’s period of employment is eight years or more. 2000, c. 41, s. 57.

Pay Instead of Notice Period

According to section 61(1) of the Ontario Employment Standards Act an employer may terminate the employment of an employee without notice or with less notice than is required under if the employer,
(a) pays to the employee termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section; and
(b) continues to make whatever benefit plan contributions would be required to be made in order to maintain the benefits to which the employee would have been entitled had he or she continued to be employed during the period of notice that he or she would otherwise have been entitled to receive. 2000, c. 41, s. 61 (1); 2001, c. 9, Sched. I, s. 1 (14).

Severance of Employment

What constitutes severance?

According to section 63(1) of the Ontario Employment Standards Act, An employer severs the employment of an employee if,
(a) the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee;
(b) the employer constructively dismisses the employee and the employee resigns from his or her employment in response within a reasonable period;
(c) the employer lays the employee off for 35 weeks or more in any period of 52 consecutive weeks;
(d) the employer lays the employee off because of a permanent discontinuance of all of the employer’s business at an establishment; or
(e) the employer gives the employee notice of termination in accordance with section 57 or 58, the employee gives the employer written notice at least two weeks before resigning and the employee’s notice of resignation is to take effect during the statutory notice period. 2000, c. 41, s. 63 (1); 2002, c. 18, Sched. J, s. 3 (24).

According to section 64 (1) of the Ontario Employment Standards Act, an employee is entitled to severance pay if:
An employer who severs an employment relationship with an employee shall pay severance pay to the employee if the employee was employed by the employer for five years or more and,
(a) the severance occurred because of a permanent discontinuance of all or part of the employer’s business at an establishment and the employee is one of 50 or more employees who have their employment relationship severed within a six-month period as a result; or
(b) the employer has a payroll of $2.5 million or more. 2000, c. 41, s. 64 (1).

At the very least, an employee is entitled to the notice periods, vacation pay or pay instead of notice and, if applicable, severance pay set out in the Ontario Employment Standards Act.

Please note that if your employment is covered by a collective agreement (i.e. part of a union) you cannot make a complaint through the Employment Standards Act, you must bring your claim to grievance arbitration.

Common Law Notice Period

An employee may be entitled to, and is often the case, a notice period beyond the statutory minimum, depending on a number of factors, which include:

– length of employment
– training and experience required to fill the position
– responsibility attached to the position.
– employee’s relevant education, training and experience; and
– employee’s age.

In addition to compensation in lieu of reasonable notice, an employer may be obliged to continue to provide an employee with medical and dental benefits and any other benefits that they received prior to their dismissal for the duration of the notice period.

In the event that an employer has made no offer to an employee or the employee does not agree with the terms offered, an employee has the option of pursuing a claim under the Employment Standards Act or through the civil courts. They cannot elect to pursue a remedy under both. If an employee elects to pursue a remedy under the Employment Standards Act, any award will be limited to the maximum allowed under the Act.