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Being dismissed from a job is a difficult experience. It also poses a potential economic risk to employers who break the law.
If you have been dismissed or if you are an employer considering terminating an employee, it is important to understand the legal rights of employment. The Employment Standards Act (ESA) guarantees any terminated employee legal grounds to challenge the rightfulness of their dismissal. In addition, the Ontario Human Rights Code protects employees from being fired on the basis of a protected ground. If an employee believes he has lost his job because of a protected ground, it could be discrimination.
Employees have options to pursue remedy under the Employment Standards Act or the Ontario Human Rights Code.
What is the Employment Standards Act?
The ESA outlines the minimum requirements that an employer must meet if they are to terminate an employee without cause. While the law takes into consideration individual circumstances, these rules establish a baseline for former employees looking for help from the law. These rules, however, do not necessarily apply to union workers, whose own specific contracts have their own requirements. The main requirements of the Employment Standards Act are:
For an employer to dismiss an employee who has worked longer than 3 months, the employee must be provided with a notice of termination and let go only after the proper statutory notice period has passed.
Or, an employer can dismiss an employee without notice or less notice than is legally required if the employer provides termination pay equivalent to a legally required notice period.
What is a Statutory Notice Period?
The Employment Standards Act defines the notice period as the time period between receiving a termination notice and the time of termination. Generally, the notice period is 1 week for every year employed by a company. Thus an employee with 2 years and 6 months of employment would get a 2-week notice period before their termination. This principle remains true until an employee has worked for the company for more than 8 years, after which time they would only receive 8 weeks for a notice period.
In addition to statutory notice, if an employee has worked over 5 years, dependent on the size of their workforce and/or the size of a company payroll, the Employment Standards Act requires employers to pay severance to employees who are terminated without cause.
What Legal Protection is There during a Notice Period?
The ESA requires that notices of dismissal be delivered, on paper or email, to employees the day the notice period is to begin. An employer is not permitted to significantly alter the terms of employment for an employee during a statutory notice period. This means an employer cannot change the duties of an employee or their pay during the notice period. If an employee doesn’t have a regular working or pay schedule, they should be compensated at a rate equaling the average of the last 12 weeks of pay.
What are the Terms of Termination Pay?
Often employers will opt to give employees termination pay instead of employing them for the required time. Employees are guaranteed an amount equal to their regular pay for the duration of the notice period as their termination pay. In addition to their termination pay, a worker is also entitled to their vacation pay for the notice period including the continuation of any benefits that may have been provided.
If someone was paid $1,000 a week with 5% vacation pay and was entitled to a 2-week notice period, they would receive $2,000 for their termination pay and $100 for their vacation for a total of $2,100.
Are There Any Exceptions to These Rules?
Employers are only required to follow these rules when they terminate an employee without cause. However, if an employee is found to be negligent in their duties as a worker, then the employer can dismiss them as they see fit. However, the burden of proof is on the employer to not only justify the dismissal, but show they gave the employee chances to avoid termination.
Do I Have a Case?
If an employer has violated any of the above standards, then an employee automatically has a case. However, the ESA outlines only the minimum requirements for handling dismissals. As a result, other circumstances like job responsibility, age or education can entitle an employee to increased remedies.
What are Your Options?
When seeking remedy, it‘s important to understand you cannot file a claim in more than one process. Professional legal advice can help you decide which option is best.
Wrongful dismissal is a serious legal and personal challenge. Being familiar with the law will protect you from mistreatment and protect your rights. If you are an employer, understanding your obligations can avoid costly litigation and or remedies.