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EXTRACTS FROM EMPLOYMENT STANDARDS
FACTS SHEET ON TERMINATION

This information is being sent for suggested distribution among
general none-HR related management staff.

What is termination of employment?
Common expressions for termination of employment include being "let go," "discharged," "dismissed," "fired" and "permanently laid off."

Under the ESA , employment is terminated if the employer:

• dismisses or stops employing someone, even when it is due to the employer's bankruptcy or insolvency

• "constructively" dismisses an employee and the employee resigns in response within a reasonable period of time

• lays an employee off for a period that's longer than a temporary layoff (see "What is a temporary layoff?").

What is a constructive dismissal?

A constructive dismissal may occur when:
an employer makes a significant change to a fundamental term or condition of an employee's employment without the employee's actual or implied consent

• For purpose of the ESA, the employer will be considered to have terminated the employee's employment if the employee resigns within a reasonable period of time after the constructive dismissal.

An employee may be constructively dismissed if the employer makes changes to the employee's terms and conditions of employment that result in a significant reduction in salary or a significant change in such things as the employee's:

• work location

• hours of work

• authority or position

The employee would have to resign in response within a reasonable period of time in order for the employer's actions to be considered a termination of employment for purposes of the ESA.
Constructive Dismissal may also include situations where an employer harasses or abuses an employee, or an employer gives an employee an ultimatum to "quit or be fired" and the employee resigns in response.
Constructive dismissal is a complex and difficult subject. An employee who thinks he or she may have been constructively dismissed should contact the Ministry of Labour for further information.

When can an employee's job be terminated?

In most cases, an employer can terminate an employee's job at any time, but employers must provide proper written notice, or termination pay instead of notice.

However, there are some situations where an employer can't terminate an employee's employment even if the employer is prepared to give proper written notice or termination pay. For example, an employer can't end someone's employment, or penalize them in any way, if any part of the reason for the termination of employment is based on the employee asking questions about the ESA or exercising a right under the ESA , such as refusing to work in excess of the daily or weekly hours of work maximums, or taking a pregnancy, parental, family medical or emergency leave. (See the "Role of the Ministry of Labour" Fact Sheet for more information.)

Do all employees qualify for termination notice and pay?

Certain employees are not entitled to notice of termination or termination pay under the ESA . For example, employees who are guilty of willful misconduct, disobedience or willful neglect of duty that isn't trivial, and has not been condoned by the employer, are not entitled. Other examples include construction employees, employees on temporary layoff and employees who refuse an offer of reasonable alternative employment.

An employee who has been employed less than three months and has his or her employment terminated is not entitled under the ESA to notice of termination or termination pay.

Many of the exemptions from the ESA are complex Contact the Ministry of Labour for further information.

How much notice of termination do employees get?

In most cases, when an employer ends the employment of someone who has been continuously employed for three months or more, the employer must provide either written notice of termination or termination pay or a combination of the two. If notice is given, the employee must be paid his or her regular wages throughout the notice period.

How much written notice is required depends on how long someone has been employed by an employer. Employers must continue to make the benefit plan contributions required to maintain an employee's benefit plans during the notice period. This applies even if the employee has received termination pay instead of working part or all of the notice period.
 
In most cases, written notice of termination of employment must be addressed to the employee. It can be delivered in person or by mail, fax or email, as long as delivery can be verified.

The following specifies the periods of notice an employer must give an employee based on length of employment:

Length of Employment: Notice Required
Less than 3 months None
3 months but less than 1 year 1 week
1 year but less than 3 years 2 weeks
3 years but less than 4 years 3 weeks
4 years but less than 5 years 4 weeks
5 years but less than 6 years 5 weeks
6 years but less than 7 years 6 weeks
7 years but less than 8 years 7 weeks
8 years or more 8 weeks

Note: Special rules apply in the case of "mass terminations", where 50 or more employees are terminated at an employer's establishment within a four-week period.

Note: Special rules apply in the case of "mass terminations", where 50 or more employees are terminated at an employer's establishment within a four-week period. Please see Your Guide to the Employment Standards Act, "Termination of Employment".

How much termination pay do employees get?

An employee who doesn't get the required written notice (see the chart above) must get termination pay instead.

Termination pay is a lump sum payment equal to the regular wages for a regular work week that an employee would have earned during the notice period had notice been given. A special method for calculating termination pay applies to employees who don't have a regular work week or are paid on a basis other than time worked (e.g., piece-work rate, commission).

Termination pay must be paid to an employee no later than seven days after the employee's employment is terminated or on what would have been the employee's next regular pay day, whichever is later.

Regular wages
"Regular wages" are wages other than overtime pay, vacation pay, public holiday pay, premium pay, termination pay and severance pay and certain contractual entitlements.

Regular work week
For an employee who usually works the same number of hours every week, a regular work week is a week of that many hours, not including overtime hours.

What is severance of employment?

A person's employment is "severed" when the employer:

• dismisses or stops employing someone, even when it is due to the employer's bankruptcy or insolvency

• "constructively" dismisses the employee and the employee resigns in response within a reasonable period of time (see "What is a constructive dismissal?")

• lays the employee off for 35 weeks or more in any period of 52 consecutive weeks
  lays the employee off because all of the business at an establishment is permanently discontinued, or

• gives the employee written notice of termination and the employee resigns after giving two weeks' written notice, and the resignation takes effect during the required notice of termination period.

What is severance pay?

"Severance pay" is compensation that's paid to a qualified employee who has his or her employment "severed." It compensates an employee for loss of seniority and job-related benefits. It also recognizes an employee's years of service.

Severance pay is not the same as termination pay, which is given in place of the required notice of termination of employment.

Who qualifies to receive severance pay?

An employee qualifies for severance pay when his or her employment is severed and he or she:

• has worked for the employer for five or more years (including all time spent by the employee in employment with the employer, whether continuous or not and whether active or not)

        and

• was employed by an employer who has a payroll in Ontario of at least $2.5 million

        or

• severed the employment of 50 or more employees in a six-month period because all or part of the business was permanently discontinued.

Certain employees are not entitled to severance pay under the ESA. For example, employees who are guilty of willful misconduct, disobedience or willful neglect of duty that isn't trivial, and has not been condoned by the employer, are not entitled to severance pay. Also, certain construction employees aren't covered, nor are employees who refuse an offer of reasonable alternative employment.

Many of the exemptions from the ESA are complex. Contact the Ministry of Labour for further information.

How much severance pay are employees entitled to?

To calculate the amount of severance pay an employee is entitled to receive, multiply the employee's regular wages for a regular work week* by the sum of:

• the number of completed years of employment

and

• the number of completed months of employment divided by 12 for a year that is not completed.

* See regular wages and regular workweek

Note: A special method of calculating severance pay applies to employees who don't have a "regular work week" or are paid on a basis other than time worked (e.g., piece-work rate or commission.)

When must employees receive their severance pay?

An employee must receive severance pay no later than seven days after his or her employment is severed or what would have been his or her next regular pay day, whichever is later.

However, an employer may pay severance pay in instalments with the written agreement of the employee or the approval of the Director of Employment Standards, Ministry of Labour. An instalment plan can't exceed three years. If an employer fails to make a scheduled payment, all of the severance pay still owing to the employee becomes due immediately.

What if the employer does not follow the ESA?

If an employee thinks the employer is not complying with the ESA , he or she can call or visit the nearest Ministry of Labour office to discuss a particular situation or to file a complaint. Complaints are investigated by an employment standards officer who can, if necessary, make orders against an employer - including an order to comply with the ESA. The ministry has a number of options to enforce the ESA, including requesting voluntary compliance, issuing an order to pay wages, an order to comply, an order to compensate, an order to reinstate and/or a notice of contravention, or issuing a ticket or otherwise prosecuting the employer under the Provincial Offences Act.