Employee Frequently Asked Questions
The term "wrongful dismissal" refers to an employer’s failure to give an employee reasonable notice or pay in lieu of notice, when terminating an employee’s job and there is no just cause for the dismissal. If you are a unionized worker covered by a collective agreement, you cannot sue for wrongful dismissal. Instead, you must contact your union for assistance. For unionized workers, all work-related issues (including dismissal and those topics specifically mentioned in the collective agreement) are likely to be governed by the grievance and arbitration processes.
Reasonable notice is the notice that an employee is entitled to receive when he/she is dismissed from his/her job. The notice may be written or oral, but it must be communicated in clear and plain language.
The first consideration is the minimum statutory requirements for termination pay under the Employment Standards Act, 2000 ("ESA"). At common law, the courts also look at a variety of factors including: the employee’s age, the position held, length of service, the employee’s level of compensation, and the availability of similar work, given the employee’s experience, training, and qualifications. In turn, this notice period will assist in determining the amount of compensation that a worker is entitled to upon dismissal.
The ESA sets out the minimum standards and conditions that apply for most employees in the Province of Ontario. Under the Act, an employee who is terminated from his/her job is entitled to receive notice of termination or termination pay, as follows:
after 3 months
after 12 months
after 2 years
after 3 years
after 4 years
after 5 years
This pattern continues to a maximum of 8 weeks for 8 years or more of service. An employer can either give an employee working notice in writing for the relevant period or pay this sum. The Act also provides that all benefits be continued for the relevant period.
In addition to termination pay, an employee may receive severance pay if the following two conditions are met:
- The employee must have been employed by the employer for at least 5 years; and
- The employer has an annual Ontario payroll of at least $2.5 million.
The amount of the severance pay required by the legislation is 1 week’s pay per year of service, to a maximum of 26 weeks.
Contrary to a publicly held notion, just cause is more than having a ‘good reason’ to terminate someone’s job. Just cause is behaviour on the part of an employee that is found to be so serious that the employee is said to have broken the terms of his/her employment contract. As a result, the employee is not entitled to reasonable notice or pay in lieu of notice, upon dismissal. The onus is on the employer to prove that the employee has committed an act which can be considered to be just cause for dismissal. An employee or employer may be wise to contact employment law counsel to determine whether there is just cause to dismiss a worker without notice or whether the employee will be able to sue for wrongful dismissal.
An employee who voluntarily quits or resigns from his/her job is not legally entitled to severance pay or pay in lieu of notice, and he/she cannot sue for wrongful dismissal.
Just as an employer is required to provide reasonable notice when terminating an employee, there is a corresponding duty on an employee who wishes to terminate the employment contract by quitting. Oftentimes, employers are not anxious to continue the employment of individuals who have tendered their resignations. As such, an employer may either waive the reasonable notice requirement or require only a minimum amount of notice.
In a case of constructive dismissal, an employee has not been terminated, but the employer has unilaterally made a substantial change to the employee’s working conditions. The change may relate to, amongst other things, the employee’s duties, position, compensation package, or the work environment. The change is such that the employee may feel forced to resign from his/her job. The remedies for constructive dismissal are similar to those found in a wrongful dismissal lawsuit. As constructive dismissal is an extremely complex area of employment law, specialized legal advice should be sought.
Under the ESA, employees who work for employers that regularly employee at least 50 workers are entitled to "Emergency Leave" in certain situations. This leave is an unpaid, job-protected leave of up to 10 days per year. It may be taken in cases of: personal illness, injury or medical emergency, or death, illness, injury, medical emergency of, or urgent matter relating to, certain relatives.
The Act also provides for "Family Medical Leave" which is an unpaid, job-protected leave up to 8 weeks in a 26-week period. This leave may be taken to provide care or support to gravely ill family members in respect of whom a qualified health practitioner has issued a certificate stating that the family member has a serious illness with a significant risk of death occurring within a 26-week period.
While some employers have paid benefit plans for sickness, bereavement and other leaves, these plans are not required by the ESA.
For further information, or to request an initial consultation, please email Haynes Law.