When the Employer Ends the Employment : NS Labour and Advanced Education, Employment Rights

When the Employer Ends the Employment

 

Under the Labour Standards Code, employers must tell an employee in writing that they will fire or suspend or lay off that employee. This is called giving notice. “Notice” is the letter telling the employee that he/she will no longer work for the employer after a given date. It is also the time between when the employee receives the letter and the date the letter says is the employee’s last day of work.

How much notice an employer must give an employee depends upon how long the employee was employed.  The following table shows the notice times for each period of employment.

 

Written Notice Requirements


If the employee has a period of employment of

The employer must give

3 months or more but less than 2 years 1 week
2 years or more but less than 5 years 2 weeks
5 years or more but less than10 years 4 weeks
10 years or more 8 weeks*

*The rules are different for employees of ten years or more (see section on Employees with 10 Years of Service).

If the employer does not want to give the employee notice, the employer must give the employee pay in lieu of (in place of) notice. This means that the employer must pay the employee as much pay as he/she would receive if he/she worked during the notice period.

 

Periods of Employment/Length of Service

An employee’s period of employment (how long he/she worked for the employer) may be broken because he/she is laid off, suspended, or fired.

The Labour Standards Code states that an employee's period of employment is considered unbroken unless it is broken:

  • by 12 months or more of layoff or suspension
  • by more than 13 weeks that resulted from the employee resigning or the employer firing the employee

 

When the Employer Gives Notice

When an employer has given the employee proper notice that the job is ending, the employer:
  • may not change the employee’s rate of pay or any other condition of employment, such as benefits
  • may not require the employee to use remaining vacation during the notice period unless the employee agrees
  • must pay the employee all the wages that he/she is entitled to receive at the end of the notice period
  • must pay accumulated vacation pay within 10 days after the employment ends

 

Change in Terms and Conditions of Employment

If the employer makes a significant change to fundamental terms and conditions of an employee’s employment (e.g., reduces pay, hours of work, demotes the employee) and the employee doesn’t agree to the change, the situation might fall under the termination rules in the legislation.  For example, if an employer reduces an employee’s weekly hours from 40 to 20 without proper notice, and the employee quits within a reasonable period of time because of the change, the employee might be able to file a Labour Standards complaint for pay in lieu of notice.

 

The Right to End Employment Without Notice

The Labour Standards Code says that there are times when an employer does not have to give notice or pay in lieu of notice that the employee will be fired or laid off.  Some examples are listed below:

  • when an employee works for the employer for less than three months
  • when an employee works for the employer for a set term or task no longer than 12 months and the employee’s job ends when the set term or task ends
  • when there is a sudden and unexpected lack of work that the employer could not avoid, e.g., because of an explosion in the workplace
  • when the employer offers the employee other reasonable employment
  • when an employee has reached the age of retirement based on a bona fide occupational requirement (for most jobs, mandatory retirement is not allowed)
  • when a person is laid off or suspended for 6 days or less - note employees with 10 or more years of service cannot be suspended without just cause

An employer can also end employment without notice or pay in lieu of notice when an employee has been guilty of wilful misconduct or disobedience or neglect of duty that has not been condoned by the employer. In order to end an employee’s job without notice, the employer must usually show that the employee has been given progressive discipline but has not improved his/her behaviour.

 

Condonation

Condonation means that the employer has not corrected a behaviour in the past. Condonation is an issue if, for example, an employer ignores an employee’s poor performance at work and then one day fires the employee for the same poor behaviour. If an employer condones an employee’s behaviour and then fires him/her without notice, the employer may be in violation of the Labour Standards Code. An employee has to be told that the employer will no longer allow the poor performance.  The employee must understand what will happen if his/her performance does not improve.

 

Progressive Discipline

Depending on the problem an employer is having with an employee, it may be better to correct the problem by using progressive discipline rather than by ending the employee’s job.

Progressive discipline can begin with spoken warnings, move to written warnings and suspensions, and then end with firing the employee.  For example, an employee who is a good worker but does not follow work procedures properly may just need spoken and written warnings to correct the problem. The discipline should match the seriousness of the problem.

There are times when the steps above would not need to be followed because of the seriousness of the employee’s behaviour. For example, if the employer can prove that the employee has stolen from the employer, then the employer may be able to fire the employee without warning or notice.

 

Employees with 10 Years of Service

The Labour Standards Code says that an employee with 10 years or more of service cannot be fired or suspended without good reason or just cause. What is good reason will depend on the employee’s and employer’s circumstances. 

To show that the employer had good reason, he/she may have to show all of the following:

  • the employer has made their expectations clear to the employee
  • the employer has warned the employee to change behaviour
  • the employer has given the employee a reasonable chance to change his/her behaviour
  • the employer has warned the employee that not improving behaviour could lead to being fired

There may be limited circumstances, like a theft, in which an employer may fire an employee with 10 years of service and not have to follow the four steps. 

When Labour Standards finds that an employee with 10 years or more of service has been fired without good reason, the employer may be ordered to bring the employee back to the job with full back pay dating to the date the employee was fired. If the employee does not wish to go back to the job, Labour Standards may order pay in lieu of reasonable notice, which could be more than the 8 weeks’ statutory notice required for an employee with 10 or more years of service.

Note:  An employee of ten years or more can be laid off with 8 weeks’ notice for shortage of work or due to an elimination of a position.

 

Exceptions to the Requirement to have Just Cause or to Give Notice

The Labour Standards Code says there are times when an employer can end the employment of an employee with 10 years or more of service without just cause and without notice or pay in lieu of notice.  This includes:
  • when there is a sudden and unexpected lack of work that the employer could not avoid, e.g., because of an explosion in the workplace
  • when the employer offers the employee other reasonable employment
  • when an employee has reached the age of retirement based on a bona fide occupational requirement (for most jobs, mandatory retirement is not allowed)

 

Ending the Employment of 10 or More Employees (Group Notice)

The Labour Standards Code says that an employer must give notice to employees and the Minister of Labour and Advanced Education when firing or laying off 10 or more employees within any period of 4 weeks or less. The amount of notice groups of employees are entitled to receive depends on the numbers being laid off:
  • 8 weeks’ notice for a group of 10 to 99 employees            
  • 12 weeks’ notice for a group of 100 to 299 employees
  • 16 weeks’ notice for a group of 300 or more employees

Notice to the Minister

When an employer is required to give group notice under the Labour Standards Code, the employer must also notify the Minister of Labour and Advanced Education, in writing, of the situation.  Written notice to the Minister should include the following information:
  • the name and address of the company laying off employees
  • the reason employees are being laid off
  • the number of employees being laid off
  • if more than one location of the business is affected, the number of employees being laid off at each location and the address of each location
  • the date written notice is being given to employees
  • the date employees’ employment is ending
  • the number of weeks’ notice and/or pay in lieu of notice being given to employees
  • contact information for an individual who the Department of Labour and Advanced Education can get in touch with if more information about the lay off is needed

 

When a Business Is Transferred or Sold

It is important to know that the Labour Standards Code says that an employee’s employment is not broken if a business is transferred or sold in any manner. If an employee worked for both the seller and purchaser of a business, when the employee’s employment comes to end, he/she may be entitled to notice that the job is ending or pay in lieu of notice based on how long the employee worked with both the past owner and the person who bought the business.

 

Employees Not Covered by the Rules

The rules about the employer ending the employment do not apply to the following employees:
  • employees employed in the construction industry
  • real estate and car sales people
  • commissioned salespeople who work outside the employer’s place of business, but not those on an established route
  • employees who work on a fishing boat
  • employees in a union with a collective agreement in force
  • practitioners or students in training for architecture, dentistry, law, medicine, chiropody, professional engineering, public or chartered accounting, psychology, surveying, veterinary science, optometry, or pharmacy (for the purposes of reinstatement claims for 10-year employees only)
  • employees who do domestic service for or give personal care to an immediate family member in a private home and are working for the householder
  • employees who do domestic service for or give personal care in a private home and are working for the householder for 24 hours or less per week
  • athletes while engaged in activities related to their athletic endeavour

 

FAQs

 

Does an employer need a reason for ending an employee's employment?

If an employee has been employed with an employer for less than ten years, the employer does not need a reason to end the employee's employment but the employer may be required to provide the employee with written notice or pay in lieu of notice.

 

Does an employer always have to give an employee notice?

No, if an employee is guilty of wilful misconduct, disobedience, or neglect of duty that has not been condoned by the employer, the employer can end the employee's employment without notice. There are a number of other situations in which employers are not required to give employees notice. Refer to Section 72(3) of the Code for further information.

 

Under what circumstances might an employee be entitled to severance and how is severance calculated?

You will want to speak to a lawyer about severance as awarded through the courts. The Labour Standards Code & Regulations do not provide for severance.

 

Does an employer have to provide a casual employee with notice before ending the employee's employment?

Yes, unless the employee was hired for a specific term.

 

What about seasonal employees, do employers have to provide them with notice?

The Code states that employees who are hired for a definite term or task for no longer than 12 months do not need to be provided with notice. An employer does not normally need to provide seasonal employees with notice unless the employer ends their employment before the season ends.

In certain situations long term seasonal employees may be considered to be employed for an indefinite term and would, therefore, be entitled to notice. These types of situations would have to be assessed on a case by case basis by the Labour Standards Division to determine whether notice is required.