Terms Of Employment During 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 to the employee where the employer has given the required minimum amount of notice.

 

The Act sets out, in effect a statutory freeze on wages, benefits, and all other terms and conditions of employment during the period of notice. The employer cannot, during the notice period:

 

.      lay the employee off without pay

.      lower the employee’s wages or benefits

.      modify the employee’s duties, unless a term or condition of employment permitted       

       the employer to make such modifications – where the employee had performed the

       allegedly new duties for some time prior to receiving the notice, there will not be a

       violation.

.      schedule the employee’s vacation during the notice period, unless the employee, after

       receiving the notice, agrees to take his or her vacation during the notice period.

 

The Act requires the employer, during the notice period:

 

.      to continue the employee’s wages (at no less than the usual non-overtime rate)

.      to continue the employer’s share of the contributions to the employee’s benefit plan

 

In other words, the employer must continue the employee’s regular non-overtime wages during the whole of notice period, even if the employee is off on leave.

 

These provisions would not apply where during the period of notice of termination; the person given notice is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and not condoned by the employer.

 

Q1.    An employee is able to come to work during the notice period and is not on a statutory or contractual leave of absence, and the employee simply refuses to come to work. Is the employee guilty of wilful neglect of duty? 

 

A1.    Yes, the employee is guilty of wilful neglect of duty.

 

Q2.    If so, will the employer be required to pay wages to the employee during the portion of the notice period following the employee’s wilful neglect of duty, wilful misconduct or disobedience?

 

A2.    No, the employer is not required to pay under the Act.

 

Also, the employer will not be required to pay wages to the employee during the portion of the notice period following the employee’s resignation.

 

The Act requires the employer, upon expiry of the notice, to pay the employee any wage or vacation pay to which the employee is entitled. 

 

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 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 the Board’s hearing to deal with the matter. 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.