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Distinction Between Quit or Fired

Wednesday, 17 March 2010 19:13

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and

responsibilities under the Act.

Does the Act cover all employees in Ontario?

Most employees are covered by the provincial legislation. However, employees working in industries that fall under Federal jurisdiction, such as, Post office, Banks, Railways, Radio stations, Airlines, Television stations etc. are not covered.

If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

Sometime it is necessary to distinguish whether an employee resigned on its own or was forced to quit because the employer changed his or her contract of employment without the employee’s consent.

If the employee was forced to quit, the “quit” is essentially considered a termination by the employer even though the employee may have said “I quit”. “Quitting” requires both action and intention.

The question arises, did the employee quit or was the employee forced to quit? Jumped or pushed?

In certain situations, the employee behaviour is not consistent with “quitting”. In an argument, the employee may say, “I quit” in the heat of an argument. It is also easy to see this as the end of the matter and consider the employee as having “quit”. But the employee’s statement, “I quit”, may contradict his or intent-shown by returning to work station and resuming work. The employee’s behaviour shows that he or she did not intend to quit.

If the employee does nothing to support an intention to quit after saying, “I quit”, the employer/employee relationship is continued.

The difficulty arises when the employee leaves but returns the next morning, saying, “I am sorry about yesterday”, goes to work station and tries to continue work. But, the employer responds, “No, I accepted your quitting yesterday and you are history”.

Under these circumstances, the question is what is reasonable and what is common conduct or behaviour in that workplace?

If the claim is filed with the Ministry of Labour for termination and severance pay, the investigating officer may interview witnesses, to talk to everyone possible. Certain behaviour indicates a resignation. For example:

. Employee states intention to resign and then requests his or her Record of

Employment for Employment Insurance benefits.

. Employee fails to return to work after giving notice of intention to quit, coupled

with cleaning out desk and leaving keys behind.

Generally speaking, there are two relevant elements to quitting employment. They are:

. a statement by the employee informing the employer of an intention to quit or, in

the absence of statement, an action that implies an intention to quit; and

. an action by the employee indicating that his or her intention has been carried out.

By contrast, there is no question whether a quit occurred in a constructive dismissal. Knowing that the employee quit, the question to determine is, whether the “quit” was forced by the employer.

If you or the employer disagrees with the investigating officer’s decision, both parties have a right to appeal to Ontario Labour Relations Board within 30 days of the officer’s decision. The Board appoints a referee to hear the appeal. It does not cost the employee to request an appeal but the employer may be required to deposit monies in trust with the Ministry of Labour if it is found to be owing. The referee decision is final and binding on both parties.

In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional? It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.

It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the employer’s evidence, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.

This information is provided for guidance only and should not be considered as a legal advice.

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

If you don’t have access to e-mail; you can fax your question at (905) 331-1805

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Severance Pay Case Studies – Part 2

Wednesday, 17 March 2010 19:13

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and

responsibilities under the Act.

Does the Act cover all employees in Ontario?

If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

What is Severance Pay?

Severance Pay is money paid by an employer to some workers who lose their jobs. It is paid in recognition of their years of service.

Can I get Severance Pay?

You can get severance pay only if:

. You have workedfive or more years for your employer

. Your employer is in one of the following two groups:

(1) Your employer has a payroll in Ontario of at least $2.5 million a year; or

(2) Your employer is no longer going to be carrying on all or part of the

business and 50 or more workers will lose their jobs for this reason inside

a six month period.

1. Two employees were employed as steel fitters with a steel company. Employee A

had been employed with the company since May 1990 while Employee B since October 1995.

Both employees lived in Toronto. Since starting their employment with the employer, they worked at a plant located at Erindale Station Road in Mississauga.

In 2005, the company verbally advised all the employees of their intent to relocate the facility to Milton, Ontario.

In February 2006, a memo addressed to “all employees” confirmed that all employees will be offered jobs at the Milton facility and the move was expected to be completed by June 2006. At the same time employees were asked to sign a form if they were volunteering to move early. Both claimants refused to sign the form.

Management asked both employees if they were willing to move to Milton facility. Both declined. Employee A also stated he did not drive and had no way of going to Milton.

In October 2006, the move was completed. The only employees left at the Mississauga facility were the claimants and a maintenance crew of approximately three employees.

The claimants reported for work on October 4, 2006. They were told that work was no longer available for them at Mississauga facility. The employees never worked for the company after October 4, 2006.

Q. Were the two employees entitled to termination and severance Pay?

A. The officer found both employees were entitled to termination and Severance Pay.

The employer appealed the officer’s decision to Ontario Labour Relations Board. The referee confirmed the officer’s decision reasoning that the notice provided was more like information rather than a proper notice as required under the Act

This information is provided for guidance only and should not be considered as a legal advice

This article is provided by Rajinder K. Batra, who is a retired Employment Standards Officer with the Ministry of Labour with 15 years experience in these matters.

If you have any questions regarding your employment, please contact the writer by e-mail at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

If you don’t have access to e-mail; you can fax your question at (905) 331-1805.

Add new comment

Severance Pay Case Studies – Part 1

Wednesday, 17 March 2010 19:13

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and

responsibilities under the Act.

Does the Act cover all employees in Ontario?

If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

What is Severance Pay?

Severance Pay is money paid by an employer to some workers who lose their jobs. It is paid in recognition of their years of service.

Can I get Severance Pay?

You can get severance pay only if:

. You have workedfive or more years for your employer

. Your employer is in one of the following two groups:

(1) Your employer has a payroll in Ontario of at least $2.5 million a year; or

(2) Your employer is no longer going to be carrying on all or part of the

business and 50 or more workers will lose their jobs for this reason inside

a six month period.

1. An eight-year employee notifies his employer, on February 15, 2010, that he will

resign on April 15, 2010. On March 1, 2010, the employer terminates the

employee effective immediately.

Q1. Who is responsible for ending the employment relationship?

A1. The employer is responsible for ending the employment relationship.

Q2. Is the employee entitled to severance pay?

A2. No. Since the employee intended to resign and thus caused the job loss.

Q3. Is the employee entitled to termination pay?

A3. Yes. The employee would be entitled to six weeks of pay for being terminated

prior to the effective date of his resignation.

2. Employee has 10 years and 6 ¾ months of employment. Regular non-overtime

weekly wage is $500.00.

Q. How much severance pay should this employee receive?

A. Since the severance pay is calculated on the completed years and months of

service, the part of the month he has not completed does not count, he is entitled

10.5 weeks of pay, which, amounts to $5,250.00?

3. On January 2, 2010, the employer issued a written notice of termination to the

employee that he would be terminated effective March 1, 2010. However, on

February 25, the employer informed the employee that he could work an extra

week after March 1, 2010, the employee refused. On February 26, the employer

advised the employee that he would not be terminated. The employee worked for

the employer for 15 years.

Q1. Can the employer withdraw notice of termination unilaterally?

A1. No. The employer cannot withdraw notice of termination without the consent of

employee.

Q2. Is the employer liable for severance pay?

A2. Yes. The employee would be entitled to severance pay of 15 weeks.

It is important that if a hearing has been scheduled, the employee must attend such a hearing to present evidence to support its position or to contest the evidence of the employer, otherwise, the officer or the referee may rely on the evidence of the employer to render a decision.

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Frequently Asked Questions Regarding Severance Pay

Wednesday, 17 March 2010 19:13

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and

responsibilities under the Act.

Does the Act cover all employees in Ontario?

If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

What is Severance Pay?

Severance Pay is money paid by an employer to some workers who lose their jobs. It is paid in recognition of their years of service.

Can I get Severance Pay?

You can get severance pay only if:

. You have workedfive or more years for your employer

. Your employer is in one of the following two groups:

(1) Your employer has a payroll in Ontario of at least $2.5 million a year; or

(2) Your employer is no longer going to be carrying on all or part of the

business and 50 or more workers will lose their jobs for this reason inside

a six month period.

Are there other reasons why I might not get Severance Pay?

Yes. The most common reasons are that:

. You have refused reasonable alternative employment with your employer;

. You have refused worked available to you through seniority system;

You are retired and collect full pension (not including a CPP pension);

. You have been terminated during or as a result of, a strike or lockout at your place

of work and your employer can show that the job you did no longer exists because

of the economic effects of the strike;

. You have been doing construction work for a contractor on the site

. You are free to decide when you want to work and can refuse to work when you

are offered it.

. You were fired for wilful misconduct, disobedience or wilful neglect of duty that

was not trivial and not condoned by your employer.

. Your employer’s yearly payroll is less than $2.5 million, or less than 50 people

were terminated when your employer closed don all or part of the business.

How much Severance Pay do I get?

If you qualify for severance pay, your employer will give you one week’s regular pay for each year of employment for a maximum of 26 weeks.

When do I get my Severance Pay?

Severance Pay must be paid to you on your next payday or seven days whichever, is later.

Do I get Severance Pay if I get laid off and don’t get a notice of termination?

The rules about layoff would apply.

What if I resign after I get notice?

If you resign after getting notice, you may still be entitled to severance pay.

In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional. It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.

Add new comment

Exclusions From Severance Pay

Wednesday, 17 March 2010 19:13

What is the Employment Standards Act?

The Employment Standards Act is the law that contains basic rules about employing people and working. Both employees and employers have rights and

responsibilities under the Act.

Does the Act cover all employees in Ontario?

If you are member of the trade union and your contract of employment is governed by the collective agreement, you may not be covered by the Act.

If you are currently employed with the company, you may be able to file a claim with a request that your name not be disclosed. The Act protects you when you are exercising your rights under it.

An employee who refuses an offer of reasonable alternate employment from the employer.

The issue of “reasonableness” depends on whether a reasonable employee in the same circumstances would consider the change reasonable.

An employee who refuses to exercise seniority rights to obtain reasonable alternative employment.

The refusal of alternate work under a seniority system can include a seniority system set up by a collective agreement or one that exists without a collective agreement.

When there is no collective agreement, the employer must show that the seniority system was formalized and was not merely ad hoc.

An employee who has been guilty of wilful misconduct or disobedience or wilful neglect of duty that was not trivial and not condoned by the employer.

To utilize this exemption, the onus is on the employer to prove that the evidence supports this exemption.

Wilfulness. The actions or omissions must have been wilful on the part of the employee. The employer must show wilfulness-whether it’s alleging misconduct, disobedience neglect of duty.

Normally, “wilful” means that the employee intended the result that happened. Poor workmanship or accidental or involuntary conduct is not usually considered wilful. However, the employee who behaves recklessly may be guilty of wilful misconduct because he or she ought to have known that his or her conduct would cause the result that happened.

Misconduct. The following list is illustrative only; it is not exhaustive:

. Fraud, theft etc.

. Alcohol or drug abuse (employee is under the influence of alcohol during working

hours. If the employee’s drinking is due to alcoholism, the employee’s behaviour

is due to recognized illness and is not wilful)

. Failure to follow company policy.

. Recklessness

. Conflict of interest

Wilful Neglect of Duty. This exemption focuses on the failure to do something rather than doing something.

Disobedience. Although the word “wilful” does not appear before the term “disobedience” in the exemption, it is implied that the disobedience involves an element of wilfulness.

Condonation. It implies that the employee alleged employee’s behaviour was not condoned by the employer.

Employees who are not regular employees are not entitled to severance pay. These include casual or “elect to work or not” employees.

“Elect to work or not” are employees who can refuse to work when offered and still are given work in future when required.

An employee who retires with a full pension is not entitled receive severance pay.

In the past, the Ministry was very aggressive in defending the rights of an employee and would send a legal counsel to represent the employee at the Board’s hearing to deal with the matter. It rarely does so now. Obviously, the employer has advantage over the employee in these circumstances. The question arises, should the employee also engage the services of a professional. It is my view, employee’s may not engage such services at the officer’s level hearing but may do so at the referee level hearing, particularly, if the issues are complex.