Minimum Written Notice Required (from the Employer)

Two weeks’ notice or two weeks’ wages in lieu, at regular rate for regular hours. (s. 230, ss. 31, 32 of the Regulation)

Minimum Written Notice Required (from the Employee)

None

Expiration of Notice

Notice expires when an employee continues to be employed more than two weeks after the date specified for termination, except if the employee agrees otherwise in writing.  Employment may still be terminated for just cause. (s. 232)

Deadline for Payment of Amounts Owed

Any wages or other amounts to which the employee is entitled under the CLC must be paid within 30 days from the time entitlement arose. Any vacation pay owed to employee must be paid “forthwith” when employment ceases. (ss. 247, 188)

Eligibility Requirements / Exclusions

An employer is not required to give notice (or pay in lieu) to an employee who has:

·         completed less than three consecutive months of continuous employment; or

·         who is dismissed for just cause. (s. 230)

Severance Pay

An employee who has completed 12 consecutive months of employment is entitled, in addition to notice of termination or pay in lieu of notice, to either two days' wages for each completed year of employment or to a total of five days’ wages (at the regular rate for regular hours), whichever is greater. 

However, an employer is not required to provide severance pay to an employee who has been dismissed for just cause or who, on ceasing to be employed or before that time, is entitled to a pension under a registered pension plan contributed to by the employer, or to a pension under the Old Age Security Act, the Canada Pension Plan or the Quebec Pension Plan. (s. 235)

Unjust Dismissal

An employee who has completed twelve consecutives months of continuous employment with an employer and who is not a manager or a member of a group of employees covered by a collective agreement may make a complaint in writing to an inspector if he/she has been dismissed and considers the dismissal to be unjust. 

Subject to certain exceptions, the complaint must be made within 90 days of the date of dismissal.  On receipt of a complaint, an inspector is assigned to assist the parties in trying to reach a settlement.  Should a complaint not be settled within a reasonable period of time, the complainant may request in writing to have it referred to an adjudicator appointed by the Minister of Labour.  However, no complaint may be considered by an adjudicator where a procedure for redress is provided elsewhere in any Act of Parliament, or where the cause of the complaint is a layoff because of lack of work or the discontinuance of a function. 

An adjudicator who decides that a dismissal was unjust may order the payment of compensation (equivalent to no more than the amount of remuneration that would have been paid to the person, but for the dismissal), order a reinstatement, or order to “do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal”.  Any order is final and may not be questioned or reviewed in any court. (ss. 167(3), 240-243)

Illegal Termination

An employer may not dismiss, suspend, lay off, demote or discipline an employee who exercises his/her rights under the Code’s reassignment, maternity leave, parental leave or sick leave provisions.  Nor may an employee be dismissed or laid off because of pregnancy or on the ground that garnishment proceedings may be or have been taken. (ss. 209.3, 238, 239)

Continuity of Employment (Transfer of Establishment)

Where any particular federal work, undertaking or business, or part thereof is transferred from one employer to another by sale, lease, merger or otherwise, the employment of the employee, before and after the transfer, is deemed to be continuous with one employer, notwithstanding the transfer. (ss. 189, 234) 

Moreover, an employee’s continuity of employment is deemed uninterrupted by a layoff that is not a termination or by an absence from employment permitted or condoned by the employer. (s. 29 of the Regulation)

Other

A layoff is deemed to be a termination unless:

·         it is a result of a strike or lockout;

·         it is for a term of twelve months or less and the layoff is mandatory by virtue of a minimum work guarantee in a collective agreement;

·         it is for a term of three months[1] or less;

·         it is for more than three months but the employee is given notice at or before the time of layoff that he/she will be recalled within six months of the layoff’s start;

·         it is for a term of more than three months and the emp­loyee continues to receive payments from the employer, the employer continues to make pay­ments regarding a registered pension benefits plan or a group or employee insurance plan, the employee receives supplementary unemployment benefits, or the employee would be entitled to receive such benefits but is disqualified under the Employment Insurance Act; or

·         the layoff is for a term of more than three months but not more than 12 months and the employee maintains recall rights in accordance with a collective agreement. (s. 230(3); s. 30 of the Regulation)

Notice to trade union:   where an employee bound by a collective agreement and whose position becomes redundant is authorized to displace an employee with less seniority, the employer must give at least two weeks’ notice in writing to the trade union and the employee whose position becomes redundant and post a copy of the notice in a conspicuous place within the industrial establishment in which the employee is employed.  Alternately, the employer may, as a result of the redundancy of the position,   terminate the employment, if the employee is paid two weeks’ wages at his/her regular rate of wages. (s. 230(2))

Conditions of employment: an employer may not reduce the rate of wages or alter any other term or condition of employment of an employee to whom a notice of termination has been given, except with his/her written consent.  Furthermore, the employer must, between the time when the notice is given and the date of termination, pay to the employee his/her regular rate of wages for his/her regular hours of work. (s. 231)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed:

·         More than three months but less than two years:            one week;

·         Two years or more but less than four:                             two weeks;

·         Four years or more but less than six:                               four weeks;

·         Six years or more but less than eight:                              five weeks;

·         Eight years or more but less than ten:                             six weeks;

·         Ten years or more:                                                           eight weeks. (s. 56)

Periods of employment with the same employer are considered to be one period of employment if not more than three months have elapsed between them. (s. 54)

Instead of giving notice of termination, an employer may pay an employee an amount equivalent to the wages his employee would have earned if he/she had worked his/her regular hours during the applicable termination notice period. 

The employer can also offer a combination of termination pay and termination notice, in which case the termination pay must be at least equal to the wages the employee would have earned for the applicable termination notice period that is not covered by the notice. (s. 57)

Minimum Written Notice Required (from the Employee)

Where an employee has been employed:

More than three months but less than two years:         one week

Two years or more:                                                        two weeks. (s. 58)

If an employee gives the minimum termination notice required and the employer wishes to terminate the employment before the end of the notice period, the employer is required to pay the employee an amount at least equal to the wages the latter would have earned for regular hours during the remainder of the notice period given by the employee. 

Should the employee give a longer notice period and the employer wishes to terminate the employment before the end of that notice period, it must pay an amount equivalent to the remainder of the required notice period from the employer[2]. (s. 59)

Expiration of Notice

A termination notice is of no effect if the employee continues to be employed by the same employer after the date specified for termination of employment. (s. 60)

Deadline for Payment of Amounts Owed

Upon termination, an employee’s earnings (wages, overtime pay, vacation pay, general holiday pay and termination pay) must normally be paid no later than three days after the last day of employment.  The three-day limit also applies if the employee terminates his/her employment by giving notice. 

However, if an employer or employee terminates employment and no termination notice or termination pay is required, earnings must be paid no later than ten days after the last day of employment. 

Similarly, if an employee fails to give the required notice before ending his/her employment, the employer must pay the employee no later than ten days after the date on which the notice would have expired. (ss. 9, 10)

Eligibility Requirements / Exclusions

Employers are not required to give termination notice (or pay in lieu) to employees who are:

·          employed on a seasonal basis (if their employment is terminated on completion of the season);

·          employed for a definite term or task for a period not exceeding 12 months;

·          employed for three months or less;

·          temporarily laid off;

·          terminated for just cause;

·          laid off after having refused reasonable alternate employment;

·          laid off as the result of a strike or lockout;

·          employed under an arrangement whereby they may elect to work or not when requested to do so. 

Nor is termination notice or termination pay required to be given to employees:

·         who have refused work made available through a seniority system;

·         whose employment has been terminated for failing to return to work within seven consecutive days of a recall (unless provided otherwise in a collective agreement); or

·         whose contract of employment has become impossible to perform because of unforeseeable or unpreventable causes beyond the control of their employer. (ss. 55(2), 62, 63, 64)

Employees are not required to give termination notice if:

·         they have been employed for less than three months;

·         there is a different established custom or practice in an industry;

·         continuing to be employed by the employer would endanger their personal health or security;

·         the contract of employment is impossible to perform due to unforeseeable or unpreventable causes beyond their control;

·         they are temporarily laid off, laid off after having refused reasonable alternate employment or laid off as the result of a strike or lockout;

·         they are employed under an arrangement whereby they may elect to work or not when requested to do so;

·         they terminate their employment because of a reduction in wage rate, overtime rate, vacation pay, general holiday pay or termination pay. (s. 58)

Most construction employees are excluded from the Code’s notice of termination and termination pay provisions.  School employees and school bus drivers are not entitled to termination pay if they work until the end of the school year and are given the opportunity to work at the beginning of the next school year. (ss. 5, 5.1 of the Regulation)

Severance Pay

N/A

Illegal Termination

An employer may not terminate the employment of, or lay off an employee who has started her maternity leave, or who is entitled to or has started parental leave, unless the employer suspends or discontinues in whole or in part the business, undertaking or other activity in which the employee is employed.  Nonetheless, the employer has the obligation to reinstate the employee or provide the latter with alternative work, in accordance with an established seniority system or employer practice, if operations are subsequently resumed within 52 weeks following the end of the employee’s maternity or parental leave. (s. 52(1), 53.1)

An employer or other person may not suspend, lay off or terminate an employee for the sole reason that garnishment proceedings are being or may be taken against the employee. (s. 124)

An employer or other person may not terminate or restrict the employment of an individual, nor discriminate against him/her, for exercising a number of rights—or complying with certain obligations—under the Employment Standards Code, namely:

• making a complaint;
• giving or having the potential to give evidence at any inquiry or in any proceeding or prosecution;
• requesting or demanding anything to which he/she is entitled; or
• making or being about to make any statement or disclosure that may be required. (s. 125)

Continuity of Employment (Transfer of Establishment)

The employment of an employee is deemed to be continuous and uninterrupted when a business, undertaking or other activity or part of it is sold, leased, transferred or merged or if it continues to operate under a receiver or receiver-manager. (s. 5)

When calculating length of employment for termination notice purposes, an employee’s periods of employment with the same employer are considered to be one period of employment if no more than three months has elapsed between them. (s. 54)

Other

Maximum duration of a temporary layoff: an employee’s employment is deemed to be terminated, and the employer must pay termination pay, on the 60^th day of a temporary layoff.  The period of temporary layoff can be extended beyond 60 days, however, as long as the employer, under a mutual agreement, pays the employee his/her wages or an amount in lieu during the layoff.  It can also be extended if the employer continues to make payments for the benefit of the laid off employee in accordance with a pension, employee insurance or other similar plan, or if a collective agreement binding the employer and the employee provides for recall rights after a layoff.  Termination pay must nevertheless be paid once payments cease or recall rights expire. (s. 63)

Conditions of employment: After the employer or employee has given termination notice, the employer may not reduce the wages, wage rate or any term or condition of employment of the employee until the date employment terminates, whether or not work is required to be performed during that period.  Furthermore, the employee must remain employed by the employer during that period, unless the employer gives the employee termination pay, or unless the employer terminates the employment of the employee for just cause, because the employee has refused an offer of reasonable alternative work, has refused work made available through a seniority system, has not been provided with work by reason of a strike or lockout at the employee’s place of employment or, finally, because the employment contract is or has become impossible for the employer to perform as a result of unforeseeable or unpreventable causes beyond its control. (s. 61)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed:

·         Three consecutive months or more but less than twelve:           one week;

·         Twelve months or more but less than three years:                      two weeks;

·         Three years or more but less than four:                                       three weeks;

·         Four years or more but less than five:                                          four weeks;

·         Five years or more but less than six:                                           five weeks; 

·         Six years or more but less than seven:                                        six weeks;

·         Seven years or more but less than eight:                                     seven weeks; 

·         Eight years or more:                                                                     eight weeks.                                                                                                          (s. 63(1) to (3))

An employer may pay an employee an amount of money in lieu of the written notice.  This amount is calculated by totalling the employee’s weekly wages, at the regular rate, earned in the last eight weeks in which the employee worked normal or average hours of work, divided by eight, and multiplied by the number of prescribed weeks of notice.  An employer may give an employee a combination of written notice and money in lieu.  (s. 63(1), (2), (3)b) (4))

When the employment of an employee is terminated at the end of a temporary layoff, the termination date is deemed to have occurred at the beginning of the layoff period.  (s. 63(5))

Minimum Written Notice Required (from the Employee)

None

Expiration of Notice

A notice of termination given to an employee has no effect if his/her employment continues after the period of notice ends.  A notice is also of no effect if it coincides with a period during which the employee is on annual vacation, leave, temporary layoff, strike or lockout or is unavailable for work due to a strike or lockout or medical reasons. (s. 67(1))

Deadline for Payment of Amounts Owed

An employer must pay all wages owing to an employee, including vacation pay, within 48 hours after the effective date of termination, if the employer terminates the employment, and within six days if employment is terminated by the employee.  (ss. 18, 58(3))

Eligibility Requirements / Exclusions

The following are excluded from coverage under the ESA:

·         practising members of designated professions;

·         students in certain approved work experience programs;

·         students employed at the secondary school where they are enrolled;

·         sitters (i.e., a person employed in a private residence to provide the service of attending to a child, or to a disabled, inform or other person); and

·         persons receiving income assistance while participating in government training or work experience programs. 

Moreover, the following are excluded from the ESA’s notice of termination provisions:

·         Employees employed at one or more construction sites by an employer whose principal business is construction;

·         auxiliary or volunteer fire fighters;

·         student nurses;

·         teachers; and

·         fishers.  (ss. 31, 32, 33, 37 of the Regulation)

No notice (or pay in lieu) is required where an employee:

·         is discharged for just cause;

·         terminates the employment;

·         retires from employment;

·         covered by a collective agreement who:

o        is employed in a seasonal industry in which the practice is to lay off employees every year and to call them back to work;

o        was notified on being hired by the employer that the employee might be laid off and called back to work; and

o        is laid off or terminated as a result of the normal seasonal reduction, suspension or closure of an operation.

·         is employed under an arrangement by which:

o        the employer may request the employee come to work at any time for a temporary period; and

o        the employee has the option of accepting or rejecting one or more of the temporary periods;

·         is employed for a definite term;

·         is employed for specific work to be completed in a period of up to 12 months (unless the employee continues to be employed at least three months after completing the term or specific work);

·         is employed under an employment contract that has become impossible for the employer to perform due to an unforeseeable event or circumstance other than receivership, action under section 427 of the Bank Act (Canada) or a proceeding under an insolvency Act;

·         has refused reasonable alternative employment by the employer. (ss. 63(3)c), 65)

The ESA’s notice and termination pay provisions for individual termination of employment (section 63) do not apply to employees covered by a collective agreement that contains any provision concerning seniority retention, recall, termination of employment or layoff.  If a collective agreement contains no provision dealing with one of these matters, section 63 of the ESA is deemed to be incorporated in the agreement as part of its terms.[3]  (s. 3)

Severance Pay

N/A

Illegal Termination

An employer may not, because of pregnancy or because of a leave allowed under the ESA (i.e., pregnancy, parental, family responsibility or bereavement leave, or jury duty), terminate an employee’s employment or change a condition of employment without the employee’s written consent.  (s. 54(2))

Continuity of Employment (Transfer of Establishment)

If all or part of a business or a substantial part of the entire assets of a business is disposed of, the employment of an employee of the business is deemed to be continuous and uninterrupted by the disposition.  (s. 97)

Other

A layoff is deemed to be temporary if: 

·         it does not exceed 13 weeks in a period of 20 consecutive weeks or,

·         in the case of an employee who has a right of recall, it does not exceed the specified period within which the employee is entitled to be recalled to employment.   (s. 1)

A week of layoff means a week in which an employee earns less than 50 percent of his/her regular weekly wages, averaged over the previous eight weeks.  (s. 62)

Conditions of employment:  once notice has been given, the employer may not alter any condition of employment of the employee concerned, including the wage rate, without the written consent of the employee or the trade union representing him/her.  (s. 67(2))

Constructive dismissal:  the Director of Employment Standards may determine that the employment of an employee has been terminated if a condition of employment is substantially altered.  (s. 66)

Reduction of liability through payments:  the Director of Employment Standards may determine that a payment made to an employee with respect to a termination of employment—other than money paid under group termination provisions—discharges, to the extent of the payment, the employer’s liability to the employee under the individual notice and termination pay requirements.  This only applies, however, if the employee is not covered by a collective agreement.  (s. 68(3))

Minimum Written Notice Required (from the Employer)

Notice must be equivalent to the duration of one pay period (a “pay period” is defined as a period of employment of no more than 16 consecutive days). (ss. 1, 61)

Where the term of employment is not fixed and wages are paid less often than once in each month, the notice of termination must be for a period of not less than 30 days. (s. 64)

Instead of giving notice of termination, an employer may pay an employee the wages that the employee would have received had he/she worked his/her regular hours of work at the regular wage rate for the required period of notice, in addition to any other wages owed. (s. 77)

An employer may establish a practice regarding termination of employment that provides for greater or lesser periods of notice.  To do so, an employer must give written notice to each employee and post a notice for at least 30 days in conspicuous places at the workplace.  The notice must be kept posted as long as the employer continues the practice; moreover, all new employees must be given written notice of the practice at the time their employment begins. (s. 63)           

Where an employer or an employee gives notice of termination, no part of the employee’s annual vacation may be used to calculate the required notice period unless, in the case of an employee giving notice, the employer agrees otherwise.  Moreover, the payment of a vacation allowance to an employee does not affect any other amount payable in respect of a termination. (s. 43)

Minimum Written Notice Required (from the Employee)

Same as notice by employer.[4] (s. 61)

Expiration of Notice

N/A

Deadline for Payment of Amounts Owed

The employer must pay all wages due to the employee within 10 working days after the termination.  However, this does not apply where an employer pays wages in accordance with an established custom or practice or a collective agreement that existed when the ESC came into force (i.e., May 1, 1999) or where an employer obtains an exemption order from the Director of Employment Standards specifying the times at which wages are to be paid. (s. 86)

Eligibility Requirements / Exclusions

The following are excluded from coverage under the ESC:

·         volunteers for religious, philanthropic, political or patriotic institutions;

·         employees working as beneficiaries under a rehabilitation or therapeutic plan or project;

·         employees who are given training or work experience for a limited period of time through a program implemented or approved by a provincial or federal government authority, or a school board, and who are not paid a wage.  (s. 2 of the Regulation)

Moreover, the following are excluded from most of the Code’s minimum standards, including notice of individual termination provisions:

·         employees employed in agriculture, fishing, fur or dairy farming; 

·         in the growing of horticultural or market garden products for sale[5];

·         employees employed in a private family home, paid by a member of the family, and whose employment in the home consists of working:

o        as a domestic worker for not more than 24 hours in a week for the same employer;

o        as a sitter attending primarily to the needs of a member of the household who is a child; or

o        as a companion attending primarily to the needs of a member of the household who is aged, infirm or ill. (s. 3, 4 of the Regulation)               

No notice (or pay in lieu) is required where an employee:

·          is a construction worker;

·          has not completed more than 30 days of employment, unless otherwise agreed in writing by the employer and the employee before employment begins;

·          is laid off temporarily;

·          is on strike or lock out;

·          is employed for a fixed period at the end of which employment is terminated;

·          is employed for a specified work or undertaking and for a period not exceeding twelve months, at the end of which employment is terminated;

·          reaches the retirement age as established by custom or practice in the employer’s business;

·          is employed under an arrangement whereby he/she may elect to work or not when requested to do so by the employer;

·          is employed under an arrangement or contract of employment that is impossible to perform or is frustrated by a fortuitous or unforeseeable circumstance;

·          acts in a manner that constitutes wilful misconduct or disobedience or wilful neglect of duty that is not condoned by the employer;

·          acts in a manner that is insubordinate toward the employer or dishonest in the course of the employment;

·          fails to return to work within a reasonable time after being recalled from a layoff;

·          is laid off after refusing an offer of reasonable alternate work made available by the employer or through a seniority system.                          

An employee is not required to give notice of termination to an employer that acts in a violent or improper manner towards him/her.                                 

Moreover, the ESC’s notice of termination provisions do not apply where the business of the employer has an established general practice or custom regarding the amount of termination notice to be given or where an agreement between an employer and employees contains such a provision. (s. 62)

Severance Pay

N/A

Illegal Termination

No employer or other person acting on its behalf may suspend, terminate or restrict or threaten to suspend, terminate or restrict the employment of an employee, lay off or threaten to lay off an employee, or otherwise discriminate against an employee because:

·         garnishment proceedings are taken or might be taken against the employee;

·         the employee files or might file a complaint under the ESC or assists in the initiation of a complaint, prosecution or other proceeding under the ESC;

·         the employee requests or receives information or advice from an employment standards officer or requests or demands anything to which he/she is entitled under the ESC;

·         the employee gives or might give information or evidence in respect of an investigation, prosecution or other proceeding under the ESC;

·         the employee makes or might make a statement or disclosure that may be required of the employee under the ESC, or because the employee refuses to work or attempts to refuse to work on a Sunday, if he/she is permitted to do so. (s. 133)                                

Nor may an employer lay off or terminate the employment of an employee who has completed seven consecutive months of employment with the employer solely because she is pregnant, gives notice of her intention to take maternity leave or he/she takes parental leave or gives notice of his/her intention to do so.   (s. 60(1))

Continuity of Employment (Transfer of Establishment)

For the purpose of the ESC’s provisions regarding annual vacations, statutory holidays, maternity and parental leave, when the business or part of the business of an employer is sold, leased, transferred, merged or otherwise disposed of whereby the control, direction of management of the business is given to another person, or the business continues to operate under a receiver, the employment of an employee is deemed to be continuous and uninterrupted. (s. 5)

Other

A layoff is not deemed to be a termination when:

·         it is customary, during that period of year, to lay off employees because of the seasonal nature of the industry and the employee has been advised, upon being hired, that he/she will be laid off during that period;

·         the layoff is for a term of eight weeks or less in any period of 16 consecutive weeks;

·         the layoff is for more than eight weeks and the employer recalls the employee within the time specified by the Minister of Labour and Immigration; or

·         the layoff is for more than eight weeks but the employer continues to pay wages or to make payments to the employee of an agreed amount, or the employer continues to make payments for the benefit of the employee to a pension plan and/or insurance plan. (s. 78; s. 19 of the Regulation)                                                              

When a layoff becomes a termination, the employment of the employee is deemed to have been terminated without notice on the first day of the layoff and the employer must pay to the employee the wages to which the latter is entitled, under the ESC, in lieu of termination notice. (s. 20 of the Regulation)                        

Conditions of employment: an employer that gives notice of termination may not change the working conditions or wage rate of an employee to whom the notice is given or of an affected employee, except in accordance with a collective agreement or with the written consent of the bargaining agent for the affected employee, or with the written consent of the affected employee, where the latter does not have a bargaining agent. (s. 76)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed by the employer for a continuous period of:

·         Six months or more but less than five years:       two weeks;

·         Five years or more:                                               four weeks. (s. 30(1))

Instead of giving notice of termination, an employer may pay an employee an amount equal to the pay the employee would have earned during the notice period. (s. 34)

Minimum Written Notice Required (from the Employee)

None

Expiration of Notice

If an employee continues to work for the employer for one month or more beyond the end of the notice period, the notice of termination or layoff becomes extinguished and a new notice must be given if the employee is to be laid off or terminated. (s. 30(3))

Deadline for Payment of Amounts Owed

Not specified

Eligibility Requirements / Exclusions

The following are excluded from coverage under the ESA:

·         persons working in or about the private home of the individual who employs them[6];

·         agricultural workers employed by small employers (i.e., employers that employ three or less employees, who are not in a close family relationship, over a substantial period of the year). 

Also, under certain circumstances, an employer may apply to the Director of employment standards to be exempted from any provision of the ESA. (ss. 1, 5, 8; s. 4 of the Regulation)

No notice (or pay in lieu) is required where an employee:

·         is covered by a collective agreement;

·         is dismissed for cause and the employer sets out the reasons in writing;

·         is laid off due to an unforeseen lack of work;

·         is laid off for a period of six days or less;

·         is laid off or terminated as a result of the normal seasonal reduction, closure or suspension of an operation;

·         has completed a definite assignment that he/she was hired to perform over a period not exceeding 12 months;

·         has completed a term of employment that was fixed in the employment contract, unless the employee continues to be employed for a period of three months after the end of that period;

·         is doing construction work in the construction industry;

·         retires under a bona fide retirement plan; or

·         refuses reasonable alternate employment offered as an alternative to a layoff or termination. (ss. 29-31)

Severance Pay

N/A

Illegal Termination

An employer may not dismiss, suspend, lay off, penalize, discipline or discriminate against an employee because:

·        the employee has applied for leave to which he/she is entitled under the ESA;

·        the employee, if permitted to do so under the ESA, refused or attempted to refuse to work on a Sunday or sought to enforce his/her rights to a weekly rest period;

·        the employee made a complaint or gave information or evidence against the employer with respect to any matter covered by the ESA or concerning an alleged violation of any provincial or federal Act or regulation;

·        the employer attempts to evade any responsibility imposed under any provincial or federal Act or regulation; or

·        the employer attempts to prevent or inhibit an employee from taking advantage of any right or benefit granted under the ESA. 

Nor may an employer dismiss, suspend or lay off:

·        an employee who has been granted a leave of absence under the ESA during the leave of absence or for reasons arising from the leave alone; or

·        a pregnant employee for reasons arising from her pregnancy alone. (ss. 17.1(5), 28, 42, 44.04)

Continuity of Employment (Transfer of Establishment)

Where an activity, business, trade or undertaking is disposed of, transferred or sold in any manner or amalgamated, whether by agreement, will, instrument, transfer, including transfer of shares, or by operation of law, the period of employment of an employee of the activity, business, trade or undertaking at the time of such disposition, transfer, sale or amalgamation, is deemed to have been a period of employment with the disposee, transferee, purchaser or amalgamation and the continuity of employment is deemed to be unbroken. (s. 89)

Other

N/A

Minimum Written Notice Required (from the Employer)

Where an employee has been continuously employed^[7] by the employer:

·         Three months or more but less than two years: one week;

·         Two years or more but less than five:                  two weeks;

·         Five years or more but less than ten:                   three weeks;

·         Ten years or more but less than fifteen:               four weeks;

·         Fifteen years or more:                                          six weeks. (ss. 52, 55)

Instead of giving notice, an employer may pay to an employee wages equal to the normal wages that the employee would have earned during the required period of notice, including overtime wages (based on overtime worked in the one-month period preceding the termination of employment). (ss. 53(1)(b), 53 (2))

Minimum Written Notice Required (from the Employee)

Same notice as employer. (s. 52)                

Instead of giving notice, an employee may pay to his/her employer an amount equal to what the employee would normally earn under the contract of service during the required period of notice, including overtime wages (based on overtime worked in the one-month period preceding the termination of employment). (ss. 54(1)(b), 54 (3))

Expiration of Notice

A notice of termination or temporary layoff has no effect if the contract of service continues beyond the period of expiry specified in the notice. (s. 56(1))

Deadline for Payment of Amounts Owed

The employer must pay all wages due to an employee within one week from the date of termination of the employee’s contract of service. (s. 33(2))

In addition, the employer must, upon termination of the contract of service, pay to the employee the vacation pay to which he/she is entitled in addition to the wages properly earned by the employee for the period following the notice of termination. (s. 12(2))

Eligibility Requirements / Exclusions

The LSA’s notice of individual termination provisions do not apply to persons employed in the construction industry[8]. (s. 12 of the Regulation)

Employers are not required to give notice (or pay in lieu) to an employee when:

·         the employee is laid off for a period not exceeding one week;

·         the employee is employed for a firm non-renewable term or specific task not exceeding 12 months and his/her employment is not terminated before the completion of the term or task;

·         the contract of service between the employer and the employee has existed for less than 30 days;

·         the employee has refused an offer by the employer of reasonable alternative employment of a similar nature requiring similar skill, effort and ability, and that would enable the employee to earn during a similar number of working hours a total wage comparable to what was provided in the contract of service being terminated;

·         the employee has reached the age of retirement according to the established practice of the undertaking where he/she is employed;

·         the employee has wilfully refused to obey a lawful instruction of the employer or has committed misconduct or been so neglectful of duty that the interest of the employer is adversely affected, or the employee has otherwise been in breach of a material condition of the contract of service that warrants summary dismissal according to the director of the Labour Relations Board;

·         the employer is required to terminate the contract of service on account of destruction of or major breakdown to plant machinery or equipment, or climatic or economic conditions that are beyond the foreseeable control of the employer and that necessitate declaration of redundancy. (s. 53 and s. 12 of the Regulation)

Employees are not required to give notice (or pay in lieu) to their employer when:

·         the contract of service between the employer and the employee has existed for less than one month;

·         the employer has mistreated the employee or acted in a manner that has or might endanger the health or well-being of the employee;

·         the employer has otherwise been in breach of a material condition of the contract of service that warrants no notice being given according to the director or the Labour Relations Board; or

·         the employee is employed for a firm non-renewable term or specific task not exceeding 12 months and the employment is not terminated before the completion of that term or task. (s. 54)              

A collective agreement or written contract of service may provide for minimum periods of notice of temporary layoff or termination of employment that are different than those required by the LSA, but only if, under the collective agreement or written contract of service, the period of notice that must be given is the same for the employer and the employee. (s. 51)

Severance Pay

N/A

Illegal Termination

An employer may not dismiss or give notice of dismissal to an employee for the sole reason that the employee informs the employer that she is pregnant or that he/she intends to take or takes pregnancy, adoption or parental leave, in accordance with the LSA. (s. 43.9(1))

An employer may not discharge or threaten to discharge an employee contrary to the LSA or discriminate against an employee because the latter:

·         has testified or is about to testify in a proceeding or help in an investigation made or taken under the LSA;

·         has given information to the board or to the director or an officer or inspector appointed under the LSA to acquire information regarding the wages payable to that employee or other employees of the employer or the terms of the contract of service of that employee or other employees;

·         has initiated or taken part in a proceeding, investigation or complaint initiated or made under the LSA; or

·         has been dismissed by a former employer. 

In addition, it is illegal for a person to seek to have an employer dismiss an employee because that employee has previously been dismissed by that person. (s. 78)

Continuity of Employment (Transfer of Establishment)

Where an employer transfers, assigns or conveys its undertaking to another person or firm, the continued and uninterrupted employment of the employee by the person having so acquired the undertaking is considered to be continuous with the period of employment with the 1^st named employer and counts as against the new employer for the regulation of the rights, benefits and privileges of the employee under the LSA. (s. 6)

Other

Travel costs from remote site: an employee employed at a remote site must be provided free transpor­ta­tion to the nearest point at which regularly scheduled transport services are available if his/her employment is terminated or he/she is laid off by the employer. (s. 43.12)                                                                                                                                                                                 

A layoff is deemed to be temporary if: it does not exceed 13 weeks in a period of 20 consecutive weeks.  However, a day during the 20-week period in which the employee receives pay, including pay received for a public holiday occurring during that period, is not counted in the calculation of the 13-week layoff period. (s. 49)                                    

When a layoff becomes a termination, the employment of the employee is deemed to have been terminated at the beginning of the temporary layoff. (s. 50)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed for:

·         90 days or more, but less than three years:              two weeks;

·         Three years or more but less than four:                     three weeks;

·         Four years or more but less than five:                        four weeks;

·         Five years or more but less than six:                          five weeks; 

·         Six years or more but less than seven:                      six weeks;

·         Seven years or more but less than eight:                   seven weeks; 

·         Eight years or more: eight weeks. (s. 14.03(2))

Instead of giving notice, an employer may pay termination pay to the employee.  The amount of termination pay must be equal to the wages and benefits to which the employee would have been entitled had he/she worked his/her usual hours of work for each week of the required notice period. (ss. 14.03(1),(4))                        

The period of notice may not coincide with the annual leave of the employee whose employment is being terminated. (s. 14.03(3))

Minimum Written Notice Required (from the Employee)

None

Expiration of Notice

Notice of termination is void and of no effect if an employee continues to be employed by his/her employer after the date of termination specified in the notice of termination. (s. 14.09)

Deadline for Payment of Amounts Owed

The employer must, within ten days after termination of employment, pay to the employee all wages owed.  Any vacation pay must be paid to the employee without delay. (ss. 19, 50(3))

Eligibility Requirements / Exclusions

The following are excluded from coverage under the LSA:

·         trappers;

·         persons engaged in commercial fisheries;

·         members or students of designated professions. 

Furthermore, the LSA’s notice of individual termination provisions do not apply to employees employed:

·         in the construction industry;

·         for less than 180 days in a year, seasonally or intermittently;

·         for less than 25 hours a week; or

·         for a definite term or task not exceeding 365 days at the end of which employment is terminated. (s. 2(3), s. 1 of the Regulation)                   

No notice of termination (or pay in lieu) is required where an employee:

·         has been employed by his/her employer for a period of less than 90 days;

·         is temporarily laid off;

·         is terminated for just cause;

·         has refused an offer by the employer of reasonable alternative work;

·         following a temporary layoff, does not return to work within seven days after being requested in writing to do so by the employer. (ss. 14.03(1), 14.04)

Severance Pay

N/A

Illegal Termination

An employer may not terminate or unilaterally change a condition of employment of the employee because of the employee’s pregnancy or because the employee has requested, is on or has taken pregnancy or parental leave in accordance with the LSA. (s. 38)                     

An employer or any other person may not terminate, threaten to terminate or restrict the employment of a person or discriminate in any way against a person because the person, either on his or her own behalf or on behalf of another employee, has made a complaint under the LSA, has given evidence or may give evidence at any inquiry or any proceedings or prosecution under the LSA, requests anything to which he/she or another employee is entitled under the LSA, or has made or is about to make any statement or disclosure that may be required of the employee under the LSA. (s. 67.1(1))

Continuity of Employment (Transfer of Establishment)

For the purpose of the LSA’s annual vacation provisions, where any industrial establishment in which an employee is employed is sold, leased, merged or otherwise transferred to another employer, the employment of the employee is deemed to be continuous with one employer, despite the transfer. (s. 20)                                            

For the purpose of the LSA’s termination of employment provisions, where an employee has been employed by the same employer more than once, those periods of employment are deemed to be one period of employment if not more than 90 days have elapsed between each period of employment. (s. 14.02)

Other

Constructive termination: a Labour Standards Officer may declare that an employer has terminated the employment of an employee if satisfied that the employer has substantially altered a condition of employment to discourage the employee from continuing his/her employment. (s. 14.08(2))                      

A layoff is deemed to be temporary if: it does not exceed 45 days in a period of 60 consecutive days; it exceeds 45 days, but the employer recalls the employee to employment within a time fixed by the Labour Standards Officer. (s. 14.01)                            

A layoff is deemed to be a termination if: the employer has not given a written notice of temporary layoff, indicating the expected date of return to work, to the laid off employee; or the layoff exceeds the maximum duration for a temporary layoff.  In the latter case, the employee’s employment is deemed to have been terminated on the last day of temporary layoff and termination pay must be paid by the employer. (ss. 14.05(2), 14.06)                         

Conditions of employment: once notice of termination is given, the employer may not reduce the wages or rate of wages or alter any term or condition of employment of the employee concerned.  The employer must also pay the wages and benefits to which the employee is entitled, between the date notice is given and the date of termination. (s. 14.08(1))

Minimum Written Notice Required (from the Employer)

Where an employee has been employed continuously:

·         Three months or more but less than two years:      one week;

·         Two years or more but less than five years:            two weeks;

·         Five years or more but less than ten years:            four weeks;

·         Ten years or more:                                                   eight weeks. (s. 72(1))

Instead of giving notice of termination, an employer may pay an employee an amount equal to all pay to which the employee would have been entitled, at the regular rate for a non-overtime work week, had he/she performed work during the required period of notice. (s. 72(4))                                          

The period of notice of termination may not include any week of vacation unless the employee, after receiving the notice, agrees to take a vacation during the period of notice. (Regs. s. 8)

Minimum Written Notice Required (from an Employee)

Where an employee has been employed continuously:

·         At least three months but less than two years:        one week;

·         Two years or more:                                                  two weeks. (s. 73(1))

Expiration of Notice

Where an employee continues to be employed, after the expiry of the notice of termination, for a period exceeding the length of the notice, his/her employer may not terminate his/her employment without giving a new notice of termination or pay in lieu of notice. (s. 77)

Deadline for Payment of Amounts Owed

At the expiry of a notice of termination, the employer must pay to the employee all pay to which the latter is entitled, including any amount owed for a replacement holiday that had not yet been taken at the time employment was terminated.  In addition, the employer must pay the employee, within 10 days after the date of termination, all accumulated vacation pay earned. (ss. 34, 42(4), 74(b))

Eligibility Requirements / Exclusions

The following are excluded from coverage under the LSC:

·         employees employed in a private home by the householder to provide domestic service for a member of the employee’s immediate family, or for no more than 24 hours per week. 

Moreover, the following are excluded from most of the Code’s minimum standards, including individual notice of termination provisions:

·         employees covered by a collective agreement;

·         employees engaged in work as real estate salespersons, automobile salespersons, or salespersons—other than route salespersons—who are entitled to receive all or part of their remuneration as commissions for purchase offers or sales which are normally made outside the employer’s establishment; and

·         employees who work on fishing vessels or in the operation of fishing vessels on water. 

Although notice of termination provisions apply to duly qualified practitioners or students of designated professions and to certain senior civil servants of the province, these persons are not covered by the LSC’s provisions regarding protection against dismissals without just cause (i.e., section 71 of the LSC). (s. 2 of the Regulation)                                          

Employers are not required to give notice (or pay in lieu) to an employee who:

·         has been employed less than three months;

·         is employed for a definite term or task for a period not exceeding 12 months and does not continue to be employed for a period of three months or more after completion of the term or task;

·         is laid off or suspended for no longer than six consecutive days;

·         is discharged or laid off for any reason beyond the control of the employer (e.g., complete or partial destruction of plant, destruction or breakdown of machinery or equipment, unavailability of supplies, lack of orders for products, accident, labour disputes, weather conditions, government actions) if the employer has exercised due diligence to foresee and avoid the cause of discharge or layoff;

·         has been offered reasonable alternate employment by his employer;

·         has reached the age of retirement according to the established practice of the employer;

·         is guilty of wilful misconduct or disobedience or neglect of duty that has not been condoned by the employer;

·           is employed is the construction industry. (ss. 72(1),(3), 77(2))

Employees are not required to give notice to their employer if:

·         they are employed in the construction industry;

·         they have been employed continuously for less than three months; or

·         the employer is guilty of a breach of the terms and conditions of employment. (s. 73)

Severance Pay

N/A

Dismissal Without Just Cause

Where the period of employment of an employee with an employer is 10 years or more, the employee may not be suspended or discharged without just cause.  However, this does not apply to a person: who is discharged or laid off for any reason beyond the control of the employer if the latter has exercised due diligence; who has been offered reasonable alternative employment by his/her employer; whose employment is terminated after having reached the age of retirement, in accordance with the employer’s established practice; who is employed in the construction industry; or who is not covered by the LSC or its termination provisions.  An employee who is discharged or suspended without just cause may make a complaint to the Director of Labour Standards.  A six-month time limit applies to complaints under the Code. 

If the Director concludes that the Code has been contravened after inquiring into the complaint, he/she may order in writing the employer to comply with the Code, rectify the injury or make compensation, and/or reinstate the employee.  Appeals may be filed with the Labour Standards Tribunal, which may also make an order for compensation and/or reinstatement.   (ss. 21, 26, 71, 78(1))

Illegal Termination

An employer may not discharge, lay off or discriminate in any other manner against an employee because garnishment proceedings have been or may be taken against that employee. 

Nor may an employer discharge, lay off or discriminate against any person because that person:

·         has made a complaint pursuant to the LSC;

·         has testified or is about to testify, or the employer believes that person may testify, in any proceeding pursuant to an enactment;

·         has made or is about to make any disclosure required or permitted to be made under the LSC; or

·         has taken or has evidenced an intention to take, or the employer believes that that person may take, a leave of absence to which the person is entitled under the LSC.

In the latter case, an employer may not discharge, lay off or suspend an employee within three months of that person taking, evidencing an intention to take, or the employer believing that the employee may take, a leave of absence to which the employee is entitled, unless:

·         the employee is guilty of wilful misconduct, disobedience or neglect of duty that has not been condoned by the employer;

·         the employer has just cause to discharge or suspend the employee;

·         the reason for the discharge or layoff is beyond the control of the employer and the employer has exercised due diligence to foresee and avoid its cause; or

·         the employer, in good faith and for legitimate business reasons, ceases operation or eliminates the employee’s position and is unable to provide him/her reasonable alternative employment. (ss. 29, 30)

Continuity of Employment (Transfer of Establishment)

If an activity, business, trade or undertaking is disposed of, transferred or sold in any manner or amalgamated, whether by agreement, will, instrument, transfer, including transfer of shares, or by operation of law, the period of employment of an employee at the time of such disposition, transfer, sale or amalgamation, is deemed to have been employment with the disposee, transferee, purchaser or amalgamation and the continuity of employment is not broken. (s. 12)

For termination purposes, successive periods of employment with the same employer that are less than 13 weeks apart constitute one period of employment. (s. 77(3))

Other

Conditional notice of termination: a notice of termination may be made conditional upon the happening of a future event if the length of notice complies with the LSC. (s. 76(1))                                               

Conditions of employment: an employer may not alter the rates of wages or any other term or condition of employment of a person to whom or by whom notice has been given. (s. 74(a))                             

Where a layoff becomes a termination: a laid off employee who was not entitled to notice of termination, due to the duration of the layoff, and whose employment is terminated must receive payment in lieu of notice from his/her employer.  In such a case, employment is deemed to have been terminated on the day the employee was laid off. (s. 76(2))

Minimum Written Notice Required (from an Employer)

Where employee has been employed:

·         Three months or more but less than one year:    one week;

·         One year or more but less than three:                 two weeks;

·         Three years or more but less than four:               three weeks;

·         Four years or more but less than five:                  four weeks;

·         Five years or more but less than six:                   five weeks; 

·         Six years or more but less than seven:                six weeks;

·         Seven years or more but less than eight:             seven weeks; 

·         Eight years or more:                                             eight weeks. (ss. 54, 57)

An employer may terminate the employment of an employee without notice or with less notice than required if the employer pays the employee a lump sum equal to the amount the latter would have earned during the prescribed period of notice.[9]  The employer must also continue to make all benefit plan contributions required to maintain the benefits to which the employee would have been entitled to receive had his/her employment continued during the period of notice. (s. 61)                                 

The period of a notice of termination given to an employee may not include any vacation time unless the employee, after receiving the notice, agrees otherwise. (s. 7 of the Regulation)

Minimum Written Notice Required (from an Employee)

An employee to whom notice has been given as part of a group termination of employment may not terminate his/her employment without first giving the employer at least one week’s written notice if his/her period of employment is less than two years or at least two weeks if his/her period of employment is two years or more.  Such notice is not necessary if the employer constructively dismisses the employee or breaches a term of the employment contract, whether or not such a breach would constitute a constructive dismissal. (ss. 58(6),(7))       

An employee who takes pregnancy or parental leave may not terminate her/his employment before the leave expires or when it expires without giving the employer at least four weeks’ written notice of termination. (ss. 47(4), 49(4))

Expiration of Notice

An employer may provide temporary work to an employee who has been given notice of termination, for up to 13 weeks after the termination date specified in the notice, without being required to provide a further notice of termination. (s. 6 of the Regulation)

Deadline for Payment of Amounts Owed

The employer must pay any wages to which the employee is entitled, including any accrued vacation pay, within seven days of termination or on the day that would have been the employer’s next pay day, whichever occurs later. (ss. 11(5), 38)

Eligibility Requirements / Exclusions

The following are excluded from coverage under the ESA 2000:

·         certain persons receiving training;

·         employees of an embassy or consulate of a foreign nation and their employer;

·         students performing work under an authorized work experience program;

·         participants in community participation under the OntarioWorks Act, 1997;

·         inmates, including those in custody under the Young Offenders Act , participating in a work project or rehabilitation program;

·   offenders performing work under a court order or sentence, or as part of an alternative measure under the Young Offenders Act (Canada);

·         individuals performing work in a simulated job or working environment for rehabilitation purposes;

·         holders of political, religious or judicial office;

·         members of quasi-judicial tribunals;

·         holders of elected office in organizations, including a trade union;

·         police officers;

·         directors of a corporation. 

The following are not covered by the Act’s notice of termination provisions:

·         an employee employed for less than three months;

·         an employee who is hired on the basis that his/her employment is to terminate on the expiry of a definite term or the completion of a specific task except when:

o        employment terminates before the expiry of the term or task;

o        the term expires or the task is completed more than 12 months after employment commences; or

o        employment continues for three months or more after the expiry of the term or the completion of the task;

·         an employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer;

·         subject to the Human Rights Code, an employee whose contract of employment has become impossible to perform or has been frustrated by a fortuitous or unforeseeable event or circumstance;

·         an employee whose employment is terminated after refusing an offer of reasonable alternative employment with the employer

·         an employee whose employment is terminated after refusing alternative employment made available through a seniority system;

·         an employee who is on 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;

·         an employee whose employment is terminated during or as a result of a strike or lock-out at the place of employment;

·         construction employees;

·         an employee who is employed under an arrangement whereby he/she may elect to work or not to work when requested to do so;

·         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;

·         an employee on temporary lay-off;

·         employees whose employer is engaged in building, alteration or repair of a ship or vessel with a gross tonnage of over ten tons designed for commercial navigation and who have agreed, personally or through a bargaining agent, to be exempted from statutory notice of termination provisions in return for a supplementary unemployment benefit plan. (ss. 1(2), 3, 54, 55; s. 2 of the Regulation)

Moreover, an employer is not required to give notice of individual termination to an employee who has been provided notice (or pay in lieu) as part of a group termination of employment. (s. 54)

Severance Pay

In addition to notice of termination or pay in lieu of notice, an employee with five years of service or more (whether or not continuous or active) who is dismissed, constructively dismissed, laid off[10] for 35 weeks or more in a period of 52 consecutive weeks, laid off because of a permanent discontinuance of the employer’s business at an establishment, or whose employer refuses or is unable to continue employing him/her, may be entitled to severance pay. 

To be eligible, the employee’s employment must be severed by an employer who has an annual payroll of $2.5 million or more, or the employee must be part of a group of 50 or more employees whose employment is severed in a six-month period as a result of a permanent discontinuance of all or part of the employer’s business at an establishment. (ss. 63, 64)                                              

Employees who resign after receiving notice of termination retain their right to severance pay, provided they give at least two weeks' notice to their employer.  For the purpose of determining eligibility to severance pay, their employment is deemed to have been severed on the day the employer’s notice of termination would have taken effect.  When calculating the amount of severance pay, however, their employment is deemed to have been severed on their effective date of resignation. (ss. 63(1)(e),(3), 65(3))

The minimum amount of severance pay due to an employee is calculated by:

·         adding the number of years of employment completed by the employee (whether or not continuous or active), including any partial year of employment (i.e., the number of additional months of employment divided by 12); and

·         multiplying this sum by the employee’s regular wages for a regular work week,[11] for a total of up to 26 weeks of wages. 

An employee’s length of employment is deemed to include any period of notice of termination that should have been given by the employer under the ESA 2000. (s. 65(1) to (5))

When calculating severance pay, if the employee does not have a regular work week or if the employee is paid on a basis other than time, the employee’s regular wages for a regular work week is deemed to be the average amount of regular wages earned by the employee for the weeks in which the employee worked in the period of 12 weeks preceding the date on which the employee’s employment was severed or on the date on which the lay-off began.  (s. 65(6))

Severance pay may be paid in instalments over a period of up to three years with the agreement of the employee or the approval of the Director of employment standards. (66(1), (2)) 

Employers are not required to provide severance pay to an employee:

·         employed in construction;

·         engaged in the on-site maintenance of buildings, structures, roads, sewers, pipelines, mains, tunnels or other works;

·         whose employment is severed as a result of the permanent discontinuance of business caused by the economic consequences of a strike;

·         who retires at the time his/her employment is severed and who receives an actuarially unreduced pension benefit reflecting any service credits the employee would normally have earned had employment not been severed;

·         whose employment is severed after refusing reasonable alternative employment with the employer or made available through a seniority system;

·         who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer;

·         who is employed under an arrangement whereby he/she can elect to work or not when requested to do so; or

·         whose contract of employment has become impossible to perform or has been frustrated (unless the impossibility or frustration is the result of a permanent discontinuance of business because of a fortuitous or unforeseen event, the employer’s death, the employee’s death if notice of termination had been received before the death, or is the result of an illness or injury suffered by the employee, and the Human Rights Code prohibits severing the employment). (s. 64(3); s. 9 of the Regulation)

Illegal Termination

An employer or any person acting on its behalf may not intimidate, dismiss or otherwise penalize an employee or threaten to do so because the employee:

·         asks the employer to comply with the ESA 2000 and regulations;

·         makes inquiries about his/her rights under the ESA 2000;

·         has filed a complaint with the Ministry under the ESA 2000;

·         exercises or attempts to exercise a right under the ESA 2000;

·         gives information to an employment standards officer;

·         testifies or is required to testify or otherwise participates or is going to participate in a proceeding under the ESA 2000;

·         participates in proceedings respecting a by-law or proposed by-law under section 4 of the Retail Business Holidays Act;

·         is or will become eligible to take a leave, intends to take or takes a pregnancy, parental or emergency leave under the ESA 2000; or

·         because the employer is or may be required, because of a court order or garnishment, to pay to a third party an amount owing by the employer to the employee. (s. 74(1))

Continuity of Employment (Transfer of Establishment)

If an employer sells, leases, transfers or disposes of a business or a part of a business and the purchaser employs an employee of the seller, the employment of the employee is deemed not to have been terminated or severed for the purpose of the ESA 2000 and his/her employment with the seller[12] is deemed to have been employment with the purchaser for the purpose of any subsequent calculation of the employee’s length or period of employment.  However, this provision does not apply if the purchaser hires the employee more than 13 weeks after the earlier of either the employee’s last day of employment with the seller, or the day of the sale.  The provision applies if the building services provider for a building is replaced by a new provider and an employee of the replaced provider is employed by the new provider. (ss. 9, 10(1))                                    

For termination of employment purposes, two successive periods of employment that are not more than 13 weeks apart must be added together and treated as one period of employment. (s. 8(2) of the Regulation)

Other

A layoff is deemed to be temporary[13] and an employer is not required to provide notice of termination if:

·         it is for no more than 13 weeks in any period of 20 consecutive weeks;

·         it is for more than 13 weeks in 20 consecutive weeks but for less than 35 weeks in any period of 52 consecutive weeks and

o        the employee conti­nues to receive substantial payments from the employer;

o        the employer continues to make payments for the benefit of the employee under a legitimate retirement or pension plan or a legitimate group or employee insu­rance plan;

o        the employee receives supplementary unemployment benefits;

o        the employee would be entitled to receive supplementary unemployment benefits but is employed elsewhere during the layoff;

o        the employer recalls the employee within the time approved by the Director of employment standards; or

o        when the employee is not represented by a union, the employer recalls the employee within the time set out by mutual agreement;

·         it is for more than 35 weeks in any period of 52 weeks and the laid off employee is represented by a trade union and recalled by the employer within the time set out in an agreement between the employer and the union.  (s. 56(2))[14]

Lay-off of an employee who has a regular work week:  for the purpose of the previous paragraph, an employee is laid off for a week if:

·         in that week, the employee receives less than one-half the amount he/she would earn at his/her regular rate in a regular work week; and

·         the week is not an excluded week. (s. 56(3.1))

Lay-off of an employee who does not have a regular work week:

·         occurs when an employee is laid off for a period longer than the period of a temporary lay-off if for more than 13 weeks in any period of 20 consecutive weeks he or she earns less than one-half the average amount he/she earned per week in the period of 12 consecutive weeks that preceded the 20-week period. (s. 56(3.3))[15]

·         can also occur when the employee is laid off for a period longer than the period of a temporary lay-off if for 35 or more weeks in any period of 52 consecutive weeks he or she earns less than one-half the average amount he/she earned per week in a period of 12 consecutive weeks that preceded the 52-week period. (s. 56(3.5))[16]

An excluded weekmeans a week during which the employee, for one or more days is not able to work, unavailable for work, subject to a disciplinary suspension or not provided with work because of a strike or lock-out occurring at his/her place of employment or elsewhere. (s. 56(3)) 

Conditions of employment: during a notice period, the employer may not reduce the employee’s wage rate or alter any other term or conditions of employment (unless the employee displaces another employee in accordance with applicable seniority provisions—see below).  The employer must in each week pay the employee the wages he/she is entitled to receive, which in no case may be less than his/her wages for a regular work week[17] and must continue to make whatever benefit plan contributions are required in order to maintain the employee’s benefits until the end of the notice period. (s. 60)

Notice of indefinite layoff: an employer bound by a collective agreement who lays off an employee for a period longer than a temporary layoff may provide the employee with a written notice of indefinite layoff instead of giving a notice of termination, if advising an employee of a termination of his/her employment would or might contravene the collective agreement. (s. 4(2) of the Regulation)                                                               

Notice of termination where seniority rights apply: where employees’ contracts of employment provide seniority rights allowing for the bumping[18] of less senior employees in case of layoff or termination of employment, the employer may post a notice in a conspicuous part of the workplace setting out the name, seniority, job classification and proposed lay-off or termination date of the employee; this notice is deemed to constitute notice of termination, as of the day of posting, to any employee displaced by the employee named in the notice.  The employer is not required to maintain the wage rate or other conditions of employment of an employee who displaces another employee in such a circumstance. (s. 5 of the Regulation)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed continuously for a period of:

·         Six months or more, but less than five years:                  two weeks;

·         Five years or more, but less than ten years:                    four weeks;

·         Ten years or more, but less than fifteen years:                 six weeks;

·         Fifteen years or more:                                                      eight weeks. (s. 29(1)(a))

This notice applies to a termination of employment or layoff.

Instead of giving notice of termination, an employer may pay an employee a sum equivalent to the employee’s normal wages, excluding overtime, for the number of weeks in the prescribed notice period. (s. 29(4))

Minimum Written Notice Required (from the Employee)

Where an employee has been employed continuously for a period of:

·         Six months or more, but less than five years:      one week;

·         Five years or more:                                               two weeks. (s. 29(1)(b))

Expiration of Notice

N/A

Deadline for Payment of Amounts Owed

Any pay to which an employee is entitled on termination of employment must be paid by the employer no later than the last day of the next pay period after termination of employment. (s. 30(5))                  

Where an employee’s employment ceases after having worked for the employer for less than a continuous 12-month period, the employer must, no later than the next regular pay period after employment ceases, pay the employee an amount equal to four percent of his/her wages during the period of employment. (s. 11(2))

Eligibility Requirements / Exclusions

The following are excluded from coverage under most provisions of the ESA, including those regarding termination of employment: farm labourers (except those employed in commercial undertakings); salespersons whose income is derived primarily from commissions on sales; employees covered by a collective agreement. (s. 2(2))

Employers are not required to give notice (or pay in lieu) to an employee if:

·         the employee has been employed continuously for less than six months;

·         the employee is discharged or laid off for just cause;

·         the discharge or layoff is due to complete or partial destruction of the plant, destruction or breakdown of machinery, inability to obtain supplies and materials, or cancellation, suspension or inability to obtain orders for products, where the employer has exercised due diligence to foresee and avoid these problems; or

·         the discharge or layoff is due to labour disputes, weather conditions, or actions of any governmental authority directly affecting the operations of the employer. (ss. 29(1),(2))

Severance Pay

N/A

Illegal Termination

An employer may not dismiss, lay off or suspend an employee on the sole basis that she is pregnant, temporarily disabled because of pregnancy or because the employee has applied for maternity, parental or adoption leave in accordance with the ESA. (s. 18)

Continuity of Employment (Transfer of Establishment)

Not specified

Other

Conditions of employment: where notice of termination is given, the employer must pay the employee at least a sum equivalent to the employee’s normal wages, exclusive of overtime, for the required period of notice. (s. 29(3))

Minimum Written Notice Required (from the Employer)

Where the employee has at least three months of employment but:

·         Less than one year of uninterrupted service:       one week;

·         One year or more, but less than five years:         two weeks;

·         Five years ore more, but less than ten years:      four weeks;

·         Ten years or more:                                               eight weeks. (s. 82)

An employer that does not give notice of termination, or gives insufficient notice, must pay to the employee a compensatory indemnity equal to his/her regular wage,[19] excluding overtime, for the remaining period of notice to which he/she is entitled. (s. 83 (1))

This indemnity must be paid:

·         at the time the employment is terminated,

·         at the time the employee is laid off (if the layoff is expected to last more than six months), or

·         at the end of a period of six months after a layoff of indeterminate length, or a layoff expected to last less than six months but which exceeds that period. (s. 83(2))

Where an employee is entitled to recall privileges for more than six months under a collective agreement, the employer must pay the compensatory indemnity on the date recall privileges expire, or one year after the layoff, whichever is earlier; however, an employee is not entitled to such a compensatory indemnity if he/she is recalled before an indemnity is due and subsequently works for a period at least equal to the required notice period, or if he/she is not recalled owing to a fortuitous event. (s. 83.1)

A notice of termination of employment given to an employee during a period when he/she is laid off is absolutely null, except in the case of seasonal employment that usually lasts no more than six months each year. (s. 82(3))

Under the Civil Code of Québec, either party to a contract of employment with an indeterminate term must, barring a serious reason, provide notice to the other party before terminating the contract.  The notice of termination must be given in reasonable time, taking into account the nature of the work, the special circumstances in which it is carried on and the duration of the period of work. (ss. 2091, 2094 C.C.Q.)

Minimum Written Notice Required (from the Employee)

See last paragraph above.

Expiration of Notice

Not specified

Deadline for Payment of Amounts Owed

Not specified.  Generally, wages must be paid on regular pay days, at intervals of not more than 16 days.  In addition, any annual leave indemnity owed must be paid to the employee when his/her contract of employment is cancelled. (ss. 43, 76)

Eligibility Requirements / Exclusions

The following are excluded from coverage under the Act respecting labour standards:

·         employees whose exclusive duty is to provide care to a child or to a sick, handicapped or aged person, in the dwelling of that person, including the performance of domestic duties directly related to the immediate needs of the person, if that work does not serve to procure profit to the employer;

·         employees in the construction industry governed by the Act respecting labour relations, vocational training and manpower management in the construction industry (except with respect to provisions regarding certain family-related absences);

·         students enrolled in approved job induction programs during the school year;

·         senior managerial personnel (except with respect to provisions regarding certain family-related absences). 

Notwithstanding these exceptions, the Act’s provisions prohibiting compulsory retirement apply to all employees and employers. (ss. 3, 3.1)

No notice of termination (or pay in lieu) needs to be given to an employee:

·         who has less than three months of uninterrupted service;

·         whose contract for a fixed term or for a specific undertaking expires;

·         who has committed a serious fault;

·         whose contract of employment ends or who is laid off because of a fortuitous event. (s. 82.1)

Under the Civil Code of Québec, one of the parties may, for a serious reason, unilaterally terminate the contract of employment without prior notice. (s. 2094 C.C.Q.)

Severance Pay

N/A

Dismissal Not Made for Good and Sufficient Cause

An employee credited with two years of uninterrupted service in the same enterprise who believes that he/she has not been dismissed for a good and sufficient cause may submit a complaint in writing to the Commission des normes du travail (Labour Standards Commission) (CNT) within 45 days of his/her dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in a statute or in an agreement. (s. 124) 

Upon receiving the complaint, the CNT may, with the agreement of the parties, appoint a mediator to attempt to reach a mutually satisfactory settlement.  If no settlement is reached following the receipt of the complaint, the CNT must, without delay, have the complaint deferred to the Commission des relations du travail (Labour Relations Board) (CRT) for arbitration.  Except in the case of domestics and sitters (who may be entitled to compensation but not to reinstatement), the CRT may order a reinstatement, order the payment of an indemnity,[20] or render any other decision that it “believes fair and reasonable, taking into account all the circumstances of the matter”.  The decision of the CRT, which must be rendered in writing, is without appeal and binding on both the employer and the employee. (ss. 124, 125, 126, 128, 130)

Illegal Termination

An employer or its agent may not dismiss, suspend or transfer, practice discrimination or take reprisals against, or impose any other sanction on an employee on the grounds that:

·         an inquiry is being conducted by the CNT in an establishment of the employer;

·         the employee has exercised one of his/her rights under the Act or a regulation;

·         the employee has given information to the CNT or one of its representatives or has given evidence in a proceeding related to the application of labour standards;

·         the employee is pregnant;

·         the employee is a debtor of support subject to the Act to facilitate the payment of support;

·         the employee is subject to a seizure by garnishment;[21]

·         the employee has refused to work beyond his/her regular hours of work because his/her presence was required to fulfil obligations related to the care, health or education of a minor child, or because of the state of health of the employee’s spouse, father, mother, brother, sister or one of the employee’s grandparents, after having taken all reasonable steps to assume those obligations otherwise.

In addition, an employer or its agent may not dismiss, suspend or retire an employee, practice discrimination or take reprisals against him/her on the ground that he/she has reached or passed the age or the number of years of service at which he/she should retire according to a general law or special Act, retirement plan, collective agreement, arbitration award, decree, or common practice of the employer.  (ss. 122, 122.1)

Continuity of Employment (Transfer of Establishment)

Labour standards continue to apply, notwithstanding the alienation or concession in whole or in part of an undertaking or the modification of its juridical structure, namely by amalgamation, division or otherwise. (s. 97)                            

A contract of employment is not terminated by alienation of the enterprise or any change in its legal structure by way of amalgamation or otherwise. The contract is binding on the representative or successor of the employer. (s. 2097 C.C.Q.)

“Uninterrupted service” is defined as “the uninterrupted period during which the employee is bound to the employer by a contract of employment, even if the performance of work has been interrupted without cancellation of the contract, and the period during which fixed term contracts succeed one another without an interruption that would, in the circumstances, give cause to conclude that the contract was not renewed.” (s. 1(12))

Other

Work certificate: at the expiry of the contract of employment, an employee may require his/her employer to issue to him/her a work certificate providing only the following information: the nature and duration of the employment, the dates on which employment began and terminated, and the name and address of the employer.  Such a certificate may not mention the quality of the work or the conduct of the employee. (s. 84; this requirement also appears in section 2096 of the Civil Code of Québec)

Renewal of contract of employment: a contract of employment is tacitly renewed for an indeterminate term if the employee continues to carry on his work for five days after the expiry of the term, without objection from the employer. (s. 2090 C.C.Q.)

Right to compensation may not be renounced: an employee may not renounce his/her right to obtain compensation for any prejudice he/she suffers where insufficient notice of termination is given or where the manner in which this was done is abusive. (s. 2092 C.C.Q.)

Minimum Written Notice Required (from the Employer)

Where an employee has been employed:

·        Three continuous months or more, but less than one year:         one week;

·        One year or more, but less that three:                                          two weeks ;

·        Three years or more, but less than five:                                       four weeks;

·        Five years or more, but less than ten:                                                      six weeks;

·        Ten years or more:                                                                        eight weeks. (s. 43)

An employer who discharges or lays off an employee without having given notice must pay to the employee a sum equivalent to the normal wages, excluding overtime that he/she would have earned during the prescribed period of notice. (s. 44(2))

An employer may not lay off or discharge an employee because of a shortage of work where the employee has been in the employer's service for at least 13 continuous weeks, without giving the employee at least one week's written notice for each year of employment or portion of a year of employment with the employer, to a maximum of 10 weeks' notice. (s. 43.1)

A period of notice may not form part of any annual holiday, nor may payment of annual holiday pay to the employee be considered as pay in lieu of notice. (s. 36)

Minimum Written Notice Required (from the Employee)

None

Expiration of Notice

Not specified

Deadline for Payment of Amounts Owed

Where the employment of an employee terminates for any reason, the employer must pay to the employee all wages due, including any annual holiday pay to which the employee is entitled, within 14 days after the effective date of termination. (ss. 35, 48(2))

Eligibility Requirements / Exclusions

The following are excluded from coverage under the LSA: employees employed primarily in farming, ranching or market gardening, except in the case of egg hatcheries, greenhouses and nurseries, bush clearing operations and commercial hog operations; employees in undertakings in which only members of the employer’s immediate family are employed; sitters (s. 4(3); s. 3(2) of the Regulation)

No notice of termination (or pay in lieu) is required if:

·         the employee is discharged or laid off for just cause other than shortage of work;

·         the employee has completed less than three continuous months of service;

·         the layoff does not exceed six consecutive days. (ss. 2(h), 43)

Severance Pay

N/A

Illegal Termination

An employer must not dismiss, lay off, suspend or otherwise discriminate against an employee because she is pregnant, she is temporarily disabled because of pregnancy, or she has applied for maternity leave in accordance with the LSA.  (s 27(1))

An employee may not be dismissed or disciplined for taking bereavement leave or for an absence due to illness or injury to which he/she is entitled. (ss. 29.3(2), 44.2)

An employee may not be discharged or laid off only because a garnishee summons issued pursuant to The Attachment of Debts Act was served on the employer with respect to the employee.  (s. 81)

Finally, an employer may not discharge, threaten to discharge or discriminate in any manner against an employee because the latter has reported or proposed to report to a lawful authority any activity that is or is likely to contravene provincial or federal legislation, or has testified or may be called on to testify in an investigation or proceeding under provincial or federal legislation; however, this protection does not apply where the actions of an employee are vexatious. (s.  74)

Continuity of Employment (Transfer of Establishment)

Where a business or part thereof is sold, leased, transferred or otherwise disposed of, the service of the employees affected is deemed to be continuous and uninterrupted by the sale, lease, transfer or other disposition. (s. 83)

Other

Conditions of employment: when giving notice of termination, the employer must pay to the employee the sum he/she earned during that period or, at a minimum, a sum equivalent to the employee’s normal wages, excluding overtime, for the period.(s. 44(1))

Minimum Written Notice Required (from the Employer)

Where an employee has been employed for:

·         Six consecutive months or more, but less than one year:           one week;

·         One year or more, but less than three:                                        two weeks;

·         Three years or more, but less than four:                                      three weeks;

·         Four years or more, but less than five:                                         four weeks;

·         Five years or more, but less than six:                                          five weeks;

·         Six years or more, but less than seven:                                       six weeks;

·         Seven years or more, but less than eight:                                    seven weeks;

·         Eight years or more:                                                                     eight weeks. (s. 50(1))

A period of notice may not coincide with an employee’s annual vacation. (s. 50(3))

Where an employer terminates the employment of an employee without having given the prescribed notice, the employer must pay termination pay in an amount equal to the employee’s regular wages for his/her normal hours of work to which he/she would have been entitled during the notice period. (s. 51)

Minimum Written Notice Required (from the Employee)

Where an employee has been employed for:

·         Six consecutive months or more, but less than two years:         one week;

·         Two years or more, but less than four:                                        two weeks;

·         Four years or more, but less than six:                                          three weeks; and

·         Six years or more:                                                                        four weeks. (s. 50(2))

Where an employee terminates his/her employment without having given the prescribed notice, the employer may deduct from the employee’s wages, with the consent of the employee, an amount equal to one week’s wages at his/her regular rate of pay for his/her normal hours of work.  Where the employee does not consent to the deduction, the employer must pay the amount to the Director of employment standards.  The director must then determine whether the employee was required to give notice under the Act and whether or not it would be inequitable in the circumstances to deprive the employee of his/her wages, before deciding who, of the employer or employee, is entitled to that amount. (s. 52)

Expiration of Notice

A notice of termination is without effect if an employee continues to be employed after the period of notice expires. (s. 55)

Deadline for Payment of Amounts Owed

When the employment of an employee is terminated before the completion of the employee’s year of employment, the employer must pay to the employee all wages owing, including vacation pay,[22] within seven days from the date of termination. (s. 25(1))

When the employment of an employee is terminated at any time, the employer must pay to the employee within seven days from the date of termination all wages other than termination pay in lieu of a termination notice, which must be paid within 10 days of the expiration of the pay period.  (s. 65(1),(2))

However, any termination pay owing to an employee under the ESA may be paid in instalments equal to the amount that would have been paid for a regular pay period on the employee’s regular pay days, as long as all termination pay is paid within the prescribed period of notice to which the employee would have been entitled. (ss.  25, 65(3))

Eligibility Requirements / Exclusions

The following are excluded from coverage under the ESA: sitters, the Government of the Yukon and its employees. (s. 2(2); s. 4 of the Regulation)

The requirement to provide notice of individual termination (or termination pay) do not apply to:

·         the construction industry;

·         seasonal or intermittent undertakings that operate for less than six months in a year;

·         an employee discharged for just cause;

·         an employee employed for less than six consecutive months;

·         an employee whose employer has failed to abide by the terms of the employment contract;

·         an employee on temporary layoff;

·         an employee employed under a contract of employment that is impossible to perform due to an unforeseeable event or circumstance;

·         an employee who has refused reasonable alternative employment by his/her employer;

·         an employee who has completed a project or assignment that he/she was hired to perform over a period not exceeding 12 months;

·         an employee who has completed his/her term of employment, unless he/she is still employed for more than one month after completion of the term; or

·         an employee represented by a trade union for the purpose of collective bargaining. (s. 49(1),(3))

Severance Pay

N/A

Illegal Termination

An employer may not terminate an employee or change one of his/her conditions of employment without his/her written consent because of a maternity or parental leave authorized under the ESA or because of the employee’s pregnancy, unless the employee has been absent for a period exceeding that permitted under the ESA.  In addition, an employer may not dismiss or lay off an employee who takes sick leave or bereavement leave to which he/she is entitled. (ss. 42, 59, 60,61)

Continuity of Employment (Transfer of Establishment)

Where an employer employs an employee in connection with a business, and the employer transfers the business to another employer, the employment of the employee by the two employers before and after the transfer of the business is deemed to be continuous with the employer to whom the business is transferred. (s. 26)

Other

A layoff is deemed to be a termination unless: it is for a period not exceeding 13 weeks in a period of 20 consecutive weeks; or it is for more than 13 weeks, but the employer recalls the employee to work within a time fixed by the Director of employment standards. (s. 48(1))

Conditions of employment: where notice of termination has been given, the employer may not, without the consent of the employee, alter his/her rate of wages or any other term or condition of employment. (s. 54)

Constructive dismissal: the Director of employment standards may declare that an employer has terminated the employment of an employee when satisfied that the employer has substantially altered a condition of employment to discourage the employee from continuing his/her employment. (s. 56)

Travel costs from remote site: an employer who terminates or lays off an employee employed at a remote site must provide free transportation for the employee to the nearest point at which regularly scheduled transportation services are available. (s. 106)