GitLab

A variety of expressions are typically utilized to describe circumstances when employment is terminated. These consist of "let go," "discharged," "dismissed," "fired" and "completely laid off."

Under the Employment Standards Act, 2000 (ESA) a person's work is ended if the company:

- dismisses or stops employing a staff member, including where an employee is no longer used due to the insolvency or insolvency of the employer;
- "constructively" dismisses a worker and the worker resigns, in action, within a reasonable time;
- lays an employee off for a period that is longer than a "short-lived layoff".
In many cases, when a company ends the employment of a worker who has actually been continually employed for 3 months, the employer needs to provide the worker with either written notice of termination, termination pay or a combination (as long as the notice and the number of weeks of termination pay together equivalent the length of notification the worker is entitled to get).

The ESA does not require a company to provide a staff member a reason that their employment is being ended. There are, however, some scenarios where a company can not end a staff member's work even if the company is prepared to provide correct written notification or termination pay. For example, an employer can not end someone's employment, or penalize them in any other way, if any part of the factor for the termination of employment is based on the worker asking questions about the ESA or exercising a right under the ESA, such as declining to work in excess of the everyday or weekly hours of work maximums, or taking a leave of lack specified in the ESA. Please see the chapter on reprisals.

Getting approved for termination notification or pay in lieu

Certain workers are not entitled to observe of termination or termination pay under the ESA. Examples consist of: employees who are guilty of wilful misconduct, disobedience, or wilful neglect of responsibility that is not trivial and has not been condoned by the employer. Other examples include building and construction employees, staff members on short-term layoff, staff members who decline a deal of affordable alternative work and employees who have been used less than 3 months.

There are a variety of other exemptions to the termination of work arrangements of the ESA. See "Exemptions to see of termination or termination pay." Please also describe the special rule tool.

The termination-of-employment rules are entirely different from any entitlements a worker might have to be paid severance pay under the ESA.

Constructive dismissal

A constructive dismissal may happen when a company makes a significant change to a fundamental term or condition of a staff member's employment without the employee's real or implied consent.

For example, a worker might be constructively dismissed if the company makes modifications to the worker's conditions of work that lead to a significant decrease in income or a considerable unfavorable modification in such things as the staff member's work place, hours of work, authority, or position. Constructive termination might also consist of situations where a company pesters or abuses a staff member, or an employer offers a worker an ultimatum to "quit or be fired" and the staff member resigns in response.

The staff member would need to resign in reaction to the change within a sensible time period in order for the company's actions to be considered a termination of work for functions of the ESA.

Constructive termination is a complex and challenging topic. For additional information on positive dismissal, please get in touch with the Employment Standards Information Centre at 1-800-531-5551.

Temporary layoff

A staff member is on momentary layoff when a company cuts back or stops the employee's work without ending their employment (for instance, laying someone off sometimes when there is insufficient work to do). The mere reality that the employer does not define a recall date when laying the worker off does not always suggest that the lay-off is not short-lived. Note, however, that a lay-off, even if intended to be temporary, may result in positive dismissal if it is not permitted by the work agreement.

For the purposes of the termination arrangements of the ESA, a "week of layoff" is a week in which the employee made less than half of what they would ordinarily make (or makes usually) in a week.

A week of layoff does not include any week in which the worker did not work for one or more days because the worker was not able or offered to work, underwent disciplinary suspension, or was not provided with work because of a strike or lockout at their location of work or elsewhere.

Employers are not needed under the ESA to provide workers with a written notification of a temporary layoff, nor do they have to offer a reason for the lay-off. (They may, nevertheless, be required to do these things under a collective arrangement or a work contract.)

Under the ESA, a "short-term layoff" can last:

1. not more than 13 weeks of layoff in any period of 20 successive weeks; or
2. more than 13 weeks in any period of 20 successive weeks, however less than 35 weeks of layoff in any period of 52 successive weeks, where:- the employee continues to get substantial payments from the company; or
- the company continues to make payments for the benefit of the staff member under a genuine group or employee insurance plan (such as a medical or drug insurance coverage strategy) or a genuine retirement or pension strategy; or
- the worker gets supplementary joblessness advantages; or
- the employee would be entitled to receive extra welfare but isn't getting them due to the fact that they are used elsewhere; or
- the company remembers the staff member to work within the time frame approved by the Director of Employment Standards; or
- the employer recalls the employee within the time frame set out in an agreement with a worker who is not represented by a trade union; or



3. a layoff longer than a layoff explained in 'B' where the employer remembers an employee who is represented by a trade union within the time set out in an agreement between the union and the company.
If a worker is laid off for a duration longer than a momentary layoff as set out above, the employer is considered to have ended the staff member's employment. Generally, the worker will then be entitled to termination pay.

Written notification of termination and termination pay

Under the ESA, an employer can terminate the employment of an employee who has been employed constantly for 3 months or more if either:

- the employer has actually provided the staff member proper written notification of termination and the notice duration has actually expired
- the employer pays termination pay to the staff member where no written notice or less notification than is required is provided
Written notice of termination

A staff member is entitled to notice of termination (or termination pay rather of notice) if they have actually been constantly used for at least three months. An individual is thought about "utilized" not only while they are actively working, but likewise during at any time in which they are not working but the work relationship still exists (for instance, time in which the staff member is off sick or on leave or on lay-off).

The quantity of notice to which an employee is entitled depends upon their "period of work". A worker's period of employment consists of not just perpetuity while the staff member is actively working however likewise at any time that they are not working but the employment relationship still exists, with the following exceptions:

- if a lay-off goes on longer than a short-term lay-off, the employee's work is deemed (or considered) to have been ended on the first day of the lay-off-any time after that does not count as part of the employee's period of employment, although the employee might still be utilized for functions of the "constantly employed for 3 months" certification
- if 2 different periods of employment are separated by more than 13 weeks, just the most current period counts for functions of notification of termination
It is possible, in some scenarios, for an individual to have actually been "continuously employed" for three months or more and yet have a duration of work of less than 3 months. In such situations, the worker would be entitled to discover due to the fact that an employee who has been continually used for a minimum of three months is entitled to notice, and the minimum notice privilege of one week uses to an employee with a period of work of any length less than one year.

The following chart defines the quantity of notice required:

Note: Special guidelines figure out the quantity of notification needed when it comes to mass terminations - where the work of 50 or more employees is ended at an employer's establishment within a four-week duration.

Requirements during the statutory notice duration

During the statutory notice period, a company should:

- not reduce the worker's wage rate or change any other term or condition of employment;
- continue to make whatever contributions would be needed to preserve the employee's benefits strategies; and
- pay the employee the wages they are entitled to, which can not be less than the employee's routine earnings for a routine work week every week.
Regular rate

This is a staff member's rate of spend for each non-overtime hour of operate in the staff member's work week.

Regular incomes

These are salaries besides overtime pay, trip pay, public holiday pay, premium pay, domestic or sexual violence leave pay, termination of task pay, termination pay and severance pay and specific contractual privileges.

Regular work week

For an employee who typically works the very same variety of hours every week, a routine work week is a week of that numerous hours, not consisting of overtime hours.

Some employees do not have a regular work week. That is, they do not work the very same number of hours each week or they are paid on a basis other than time. For these employees, the "regular salaries" for a "routine work week" is the average quantity of the regular wages earned by the employee in the weeks in which the staff member worked throughout the period of 12 weeks immediately preceding the date the notice was provided.

A company is not allowed to arrange a worker's getaway time throughout the statutory notice period unless the employee-after receiving composed notice of termination of employment-agrees to take their vacation time during the notification period.

If an employer provides longer notification than is needed, the statutory part of the notice period is the tail end of the period that ends on the date of termination.

How to supply written notice

For the most part, composed notice of termination of work must be dealt with to the employee. It can be supplied in individual or by mail, fax or e-mail, as long as shipment can be verified.

There are unique rules for supplying notification of termination if a worker has an agreement of employment or a cumulative arrangement that offers seniority rights that enable a staff member who is to be laid off or whose work is to be ended to displace (" bump") other staff members.

Because case, the company must publish a notice in the office (where it will be seen by the employees) setting out the names, seniority and annunciogratis.net task classification of those workers the employer means to terminate and the date of the proposed termination. The publishing of the notification is thought about to be of termination, since the date of the publishing, to a staff member who is "bumped" by a staff member named in the notice. However, this notice of termination need to still satisfy the length requirements set out in the ESA.

There are also unique guidelines concerning how notice is supplied when there is a mass termination.

Termination pay

An employee who does not receive the written notice required under the ESA needs to be given termination pay in lieu of notice. Termination pay is a swelling amount payment equivalent to the regular salaries for a regular work week that a staff member would otherwise have been entitled to during the composed notification duration. A staff member makes holiday pay on their termination pay. Employers should also continue to make whatever contributions would be needed to keep the advantages the worker would have been entitled to had they continued to be utilized through the notification duration.

Example: Regular work week

Sarah has actually worked for 3 and a half years. Now her task has actually been eliminated and her work has actually been ended. Sarah was not offered any composed notification of termination.

Sarah worked 40 hours a week each week and was paid $20.00 an hour. She likewise got 4 percent vacation pay. Because she worked for more than three years but less than 4 years, she is entitled to three weeks' pay in lieu of notice.

Sarah's regular wages for a regular work week are computed:

$ 20.00 an hour X 40 hours a week = $800.00 a week


Her termination pay is calculated:

$ 800.00 X 3 weeks = $2,400.00


Then her getaway pay on her termination pay is calculated:

4% of $2,400.00 = $96.00


Finally, her holiday pay is included to her termination pay:

$ 2400.00 + $96.00 = $2,496.00


Result: Sarah is entitled to $2,496.00. The employer needs to likewise ensure continued protection for any benefit or pension strategies that used to her for three weeks.

Example: No regular work week

Gerry has worked at an assisted living home for four years. He works every week, however his hours differ from week to week. His rate of pay is $25.00 an hour, and he is paid 6 per cent vacation pay.

Gerry's company eliminated his position and did not offer Gerry any written notice of termination. Gerry was ill and off work for two of the 12 weeks instantly preceding the day his work was ended. Gerry made $1,800.00 in the 12 weeks before the day on which his work ended.

Gerry is entitled to 4 weeks of termination pay.

Gerry's average profits each week are determined:

$ 1,800.00 for 12 weeks/ 10 weeks (Gerry was off ill for 2 weeks therefore these weeks are not consisted of in the estimation of average revenues) = $180.00 a week


His termination pay is determined:

$ 180.00 × 4 weeks = $720.00


Then his holiday pay on his termination pay is calculated:

6% of $720.00 = $43.20


Finally, his vacation pay is added to his termination pay:

$ 720.00 + $43.20 = $763.20


Result: Gerry is entitled to $763.20. The company should likewise ensure ongoing coverage for any advantage or pension strategies that applied to him for four weeks.

When to pay termination pay

Termination pay need to be paid to a staff member either 7 days after the worker's work is ended or on the worker's next routine pay date, whichever is later.

Mass termination

Special rules for notice of termination may apply in cases of mass termination (when an employer is terminating 50 or more staff members at its establishment within a four-week period).

Meaning of "establishment"

An "facility" is an area at which the company continues service. Separate locations can be thought about one facility if either:

- they are situated within the same municipality, or
- a staff member at one location has contractual seniority rights that reach the other area, enabling the employee to displace another staff member (likewise called "bumping rights").
Effective October 26, 2023, in cases of mass termination, the term "facility" consists of a worker's home, but just if the worker works from home and does not work at any other area where the employer continues service.

This will need that workers who work exclusively from another location be thought about for addition in the count when figuring out whether 50 or more staff members have actually been ended.

Note that where a worker performs work both from their home and from another area where the employer carries on business (for instance, a workplace), their home is not included in the definition of "facility". Instead, the worker is considered to have a connection to the office area and, for that reason, for the purpose of mass termination, the staff member is included with respect to that workplace place.

Example: where multiple places are considered one "facility"

ABC Company has an office and a storage facility situated in London, ON. Sabrina lives in London and works for ABC Company specifically remotely: she carries out work for the business from home and does not work at the workplace.

For the function of mass termination, the business's London office, London storage facility and Sabrina's London home are thought about one "establishment."

Employer obligations in a mass termination

When a mass termination occurs, the company should finish and provide the Form 1 (Notice of termination of work) to the Director of Employment Standards (Director) by:

- email to esa_form1_notice@ontario.ca.
- fax to (416) 326-7061.
- personal delivery to the Director's office on a day and at a time when it is open.
- mail delivery to the Director's workplace, if the delivery can be verified.
The office of the Director of Employment Standards is found on the 9th floor, 400 University Avenue, Toronto ON M7A 1T7.

Any notice to the affected employees is ruled out to have been provided until the Form 1 is received by the Director; simply put, notification of mass termination is not reliable till the Director receives the Form 1.

In addition to offering employees with individual notifications of termination, the company must, on the first day of the notification duration:

- publish a copy of the Form 1 offered to the Director in the workplace where it will pertain to the attention of the impacted employees.
- offer a copy of the Form 1 to each impacted worker.
The amount of notice staff members need to get in a mass termination is not based on the workers' length of work, however on the variety of workers who have actually been terminated. An employer must give:

- 8 weeks observe if the employment of 50 to 199 employees is to be terminated
- 12 weeks discover if the work of 200 to 499 staff members is to be terminated
- 16 weeks discover if the work of 500 or more employees is to be ended
Exception to the mass termination rules

The mass termination rules do not use if these two things use:

- the variety of workers whose employment is being ended represents not more than 10 percent of the workers who have been employed for at least 3 months at the facility
- none of the terminations are brought on by the irreversible discontinuance of all or part of the employer's service at the establishment
Mass termination: resignation by a staff member

A worker who has gotten termination notification under the mass termination rules who desires to resign before the termination date provided in the employer's notice should provide the company at least one week's written notification of resignation if the worker has been utilized for less than two years. If the employment period has been 2 years or more, the staff member needs to offer at least 2 weeks' written notice of resignation. However, the staff member does not have to provide notice of resignation if the employer constructively dismisses the worker or breaches a term of the agreement.

Temporary work after termination date in notification

An employer can offer work to a staff member who has actually been provided notification of termination on a temporary basis in the 13-week duration after the termination date set out in the notice without affecting the initial date of the termination and without being needed to supply any more notification of termination to the employee when the short-term work ends.

If a staff member works beyond the 13-week duration after the termination date and after that has their employment ended, the staff member will be entitled to a brand-new composed notice of termination as if the previous notification had actually never ever been given. The worker's period of work will then also include the period of short-lived work.

Recall rights

A "recall right" is the right of an employee on a layoff to be recalled to work by their employer under a term or condition of employment. This right is commonly discovered in cumulative arrangements.

A worker who has recall rights and who is entitled to termination pay due to the fact that of a layoff of 35 weeks or more might pick to:

- keep their recall rights and not be paid termination pay (or severance pay, if they were entitled to discontinuance wage) at that time; or
- offer up their recall rights and get termination pay (and discontinuance wage, if they were entitled to severance pay).
If a staff member is entitled to both termination pay and severance pay, they must make the same option for both.

If a worker who is not represented by a trade union elects to keep their recall rights or stops working to make a choice, the employer must send the quantity of the termination pay (and severance pay, if any) to the Director of Employment Standards, who holds the cash in trust.

If a worker who is represented by a trade union elects to keep their recall rights or fails to choose, the employer and the trade union need to attempt to come to an arrangement to hold the termination pay (and discontinuance wage, if any) in trust for the staff member. If they can not come to an arrangement, and the trade union encourages the company and the Director of Employment Standards in composing that efforts have stopped working, the company should send the termination pay (and discontinuance wage, if any) to the Director of Employment Standards, who holds the cash in trust.

If a worker chooses to offer up their recall rights or if the recall rights end, the cash that is held in trust must be sent out to the employee.

If the employee accepts a recall back to work, the cash that is held in trust will be returned to the company.

Exemptions to notice of termination or termination pay

Many of these exemptions are complicated. Please contact the Employment Standards Information Centre, 1-800-531-5551, if you require more info. Please also refer to the special guideline tool.

The notification of termination and termination pay requirements of the ESA do not apply to a staff member who:

- is guilty of wilful misbehavior, disobedience or wilful neglect of responsibility that is not trivial and has not been excused by the company. Note: "wilful" consists of when a staff member planned the resulting consequence or acted recklessly if they knew or must have known the impacts their conduct would have. Poor work conduct that is unexpected or unintentional is generally ruled out wilful;
- was employed for a specific length of time or till the conclusion of a particular job. However, such a staff member will be entitled to notice of termination or termination pay if:- the work ends before the term ends or the task is completed; or
- the term ends or the task is not finished more than 12 months after the employment began; or
- the employment continues for 3 months or more after the term expires or the job is finished;


See also: Employment Standards Self-Service Tool

Wrongful dismissal

Rights greater than ESA notification of termination, termination pay, severance pay

The rules under the ESA about termination and severance of employment are minimum requirements. Some workers might have rights under the common law that are higher than the rights to notice of termination (or termination pay) and discontinuance wage under the ESA. An employee may want to sue their previous company in court for "wrongful termination". Employees must know that they can not take legal action against a company for wrongful termination and sue for termination pay or severance pay with the ministry for the same termination or severance of employment. An employee needs to select one or the other. Employees may want to get legal recommendations worrying their rights.