Whether a dismissal is the result of restructuring, a permanent lay-off or for any reason other than legal cause (best described as very serious misconduct) an employer has an obligation to comply with the notice and severance pay requirements under the Employment Standards Act (the “ESA”) and the common law for all non-union employees. The ESA requires an employer to give actual notice, or pay in lieu of notice, of up to eight (8) weeks depending on the employee’s years of service. As well, if an employer has an annual payroll in Ontario of 2.5 million dollars or more, the ESA also requires severance pay to be paid to any employee with five years’ service or more. The statutory severance requirement is one week per year of service (whether continuous or not) to a maximum of twenty-six (26) weeks. Unlike statutory notice, severance cannot be provided by way of working notice and must be paid out in accordance with the ESA.
Many employers mistakenly believe that they are only required to pay the ESA notice and severance pay when dismissing an employee. However, unless there is an enforceable employment agreement in place limiting the employee’s entitlement to their statutory minimums, or the employment agreement has become frustrated (see Question #1), an employer must provide common law notice, or pay in lieu of notice.
Common law notice is based on a number of factors, the most important of which are years of service, age, salary, position held and ability to obtain alternate employment. Each employee’s entitlement must be assessed individually but as a general rule an employer should assume that notice could be as much as one month’s salary for every year of service. Senior employees with shorter service may be entitled to more than one month per year of service and less senior, long term employees will likely be entitled to less than a month per year. Further, certain factors, such as inducement from secure employment or disability can extend the notice period.
It is important to note that the ESA entitlements are not paid in addition to common law notice but are inclusive of the common law obligations. In addition to notice, employers are also required to continue most fringe benefits during the common law notice period.
Employees do have an obligation to mitigate their damages by obtaining alternate employment and employers can receive credit for income earned by a former employee during the common law notice period. This may be an important factor in the structuring of termination packages.
There are a number of different strategies available when considering the best approach to an impending dismissal and employers are encouraged to contact employment counsel at CCP to determine the best way to manage their liability.