A2J
EMPLOYMENT LAW
Wrongful Dismissal
Rights greater than ESA notice of termination, termination pay, severance pay
The rules under the ESA about termination and severance of employment are minimum requirements. Some employees may have rights under the common law that are greater than the rights to notice of termination (or termination pay) and severance pay under the ESA. An employee may want to sue their former employer in court for "wrongful dismissal". Employees should be aware that they cannot sue an employer for wrongful dismissal and file a claim for termination pay or severance pay with the ministry for the same termination or severance of employment. An employee must choose one or the other. Employees may wish to obtain legal advice concerning their rights.
Constructive Dismissal
A constructive dismissal may occur when an employer makes a significant change to a fundamental term or condition of an employee's employment without the employee's actual or implied consent.
For example, an employee may be constructively dismissed if the employer makes changes to the employee's terms and conditions of employment that result in a significant reduction in salary or a significant negative change in such things as the employee's work location, hours of work, authority, or position. Constructive dismissal may also include situations where an employer harasses or abuses an employee, or an employer gives an employee an ultimatum to "quit or be fired" and the employee resigns in response.
The employee would have to resign in response to the change within a reasonable period of time in order for the employer's actions to be considered a termination of employment for purposes of the ESA.
Constructive dismissal is a complex and difficult subject.
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Minimum Notice Required Under ESA
It is possible, in some circumstances, for a person to have been "continuously employed" for three months or more and yet have a period of employment of less than three months. In such circumstances, the employee would be entitled to notice because an employee who has been continuously employed for at least three months is entitled to notice, and the minimum notice entitlement of one week applies to an employee with a period of employment of any length less than one year.
The following chart specifies the amount of notice required:
Amount of notice required if an employee has been continuously employed for at least three months
Period of employmentNotice required
Less than 1 year1 week
1 year but less than 3 years2 weeks
3 years but less than 4 years3 weeks
4 years but less than 5 years4 weeks
5 years but less than 6 years5 weeks
6 years but less than 7 years6 weeks
7 years but less than 8 years7 weeks
8 years or more8 weeks
Note: Special rules determine the amount of notice required in the case of mass terminations – where the employment of 50 or more employees is terminated at an employer's establishment within a four-week period.
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