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 they 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.
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 they would receive if that employee worked during the notice period. Pay in lieu of notice is due, as one lump sum, within five working days after the expiration of the pay period in which the termination occurred (generally the employee’s regular pay day).
An employee’s period of employment (how long they worked for the employer) may be broken because the employee is laid off, suspended, or fired. The Labour Standards Code states that an employeeâs period of employment is considered unbroken unless it is broken:
Also, if an employee quits and is rehired, their period of employment is broken, and they start a new period of employment based on their rehire date.
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 because of the change, the employee might be able to file a Labour Standards complaint for pay in lieu of 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:
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. To end an employee’s job without notice, the employer must usually show that the employee has been given progressive discipline but their behaviour/performance has not improved.
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 must be told that the employer will no longer allow the poor performance. The employee must understand what will happen if their performance does not improve.
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.
To show that the employer had good reason, he/she may have to show all of the following:
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’ statutory notice for shortage of work or due to the employer eliminating the employee’s position. The law requires that an employer must act in good faith in deciding whether to eliminate a particular position.
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:
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:
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:
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, the employee 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.
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.
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.
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.
Yes, unless the employee was hired for a specific term.
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.
If you have any questions, please contact Labour Standards.