Exceptions To The Requirement For Notice of Termination

 
If you are employed in the province of Ontario and the company falls under its jurisdiction, you may be covered under the Employment Standards Act, 2000. The Act sets minimum standards a company must comply with. If it does not, you have a right to file a claim with the Ministry of Labour. If you are currently working for 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.

 
If you have worked for the company for at least 3 months, the Act requires you must be given a written notice before your employment can be terminated. Your employment can be terminated for any reason (including no reason), except for pregnancy and parental leave and reprisals. It does not stop the employee from quitting, for any reason (including no reason).
 
The maximum notice required is 8 weeks, if you have worked for more than 8 years with the company and the minimum is 1 week, if you have worked for less than 1 year but more than 3 months.
 
Following are the exceptions to the requirement for notice of termination:
 
1.   Employee who is hired on the basis that his or her employment will end on the expiry of a definite term or the completion of a specific task.
 
2.   An employee on a temporary lay-off.
 
3.   An employee who has been guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not condoned by the employer.
 
4.   An employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance.
 
5.   An employee whose employment is terminated after refusing an offer of reasonable alternative employment with the employer.
 
6.   An employee whose employment is terminated after refusing alternate employment made available through a seniority system.
 
7.   An employee who is on a temporary lay-off and does not return to work within a reasonable time after having been requested by his or her employer to do so.
 
8.   An employee whose employment is terminated during or as a result of strike or lock-out at the place of employment.
 
9.   A construction employee.
 
10. An employee who is employed under an arrangement whereby he or she may elect to work or not to work when required to do so.        
 
11. An employee who, having reached the age of retirement according to the employer’s established practice, has his or her employment terminated in accordance with that practice.
 
12. An employee,
            (i)         whose employer is engaged in the building, alteration or repair of a ship or vessel with a gross tonnage of over ten tons designed for or used in
                        commercial navigation.
 
            (ii)        to whom a legitimate supplementary unemployment benefit plan agreed on by the employee or his agent applies, and
           
            (iii)       who agrees or whose agent agrees to the application of this exemption.
 
Wilfulness: The actions/omissions must have been willful on the part of an employee. In other words, the employee was bad on purpose, that is, he was reckless and knew or should have known his actions have serious consequences and still went ahead and did what led to his termination. Conduct that is accidental or involuntary will generally not be considered to be willful. However, the onus is on the employer to prove it.
 
Misconduct: Following examples provide illustration of wilful misconduct. It is by no means an exhaustive list:
 
(a)        Fraud, theft etc. – falsified time sheets – theft of cash or property of the employer
 
(b)        Alcohol or drug abuse  – being under the influence of alcohol during working hours.
 
Disobedience: Although, wilful does not appear before the term “disobedience”. It is implied that disobedience necessarily involves an element of wilfulness, such as, breach of company policy.
 
Wilful Neglect of Duty: Similar to wilful misconduct, except the exemption focuses on the failure to do something, rather than doing something.
 
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 found to be owing. The referee decision is final and binding on both parties.    
 
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 esaconsulting@hotmail.com

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

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