Employees Terminated Without Notice

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.

 

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.

 

The Act sets out the employer’s obligations where the employer does not give the required notice to employees who have been employed for at least three months. In other words, if the employment is terminated contrary to this requirement, the employer is required to give:

                     pay in lieu of notice

                     the amount of pay is the employee’s regular non overtime wages for the period of notice that should have been given, and any wages to which the employee is entitled.

 

Where the employer only gives partial notice and continues the employee’s regular wages

during that partial notice:

                     the employer can reduce by the amount it has paid from the amount that is

                     required to be paid under the Act.

 

Where the employee is terminated without the required notice, and then during that period obtains employment:

                     The Act does not permit the employer to reduce the pay in lieu by any

earnings which the employee is able to earn.

 

The Act is very clear that pay in lieu of notice is not compensation for damages, but a fixed payment the employer must make for not complying with its requirement.

 

In addition to the regular wages required to be paid for the number of weeks in lieu of notice, the employer is also require to add vacation pay the employee would have been entitled to during notice period.

 

Where the employee is terminated without the required notice of termination while on sick or other leave, the employer is required to pay his/her pay in lieu of notice unless the contract of employment is frustrated or impossible of performance and the employee is not otherwise exempted.

 

Where the employee has fluctuating income or is off on leave, or has received a pay cut or raise immediately prior to the termination, the same considerations apply as for employees who are given notice of termination when calculating the amount of the employee’s regular non-overtime rate. 

 

The employer is required to continue the employee’s benefit plans during the period of notice that the employee should have been given. The employee is assumed to have been employed during the notice period he should have been given. If the insurer does not recognize this requirement, the employee’s remedy is to proceed with a civil action.            

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 monies are distributed according to the decision of the referee. 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 as it has more resources than the employee. The question arises, should the employee also engage the services of a professional to deal with these matters. 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 evidence of the employer, 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 esaconsulting@hotmail.com

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