Notice of Termination
Under the Employment Standards Act, an employer must tell an employee in writing that he/she 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 on how long the employee was employed.
How Much Notice in Writing?
If the employee has worked continuously with the same employer for more than 6 months but less than 5 years; the employer must give at least 2 weeks written notice. The employee must give at least 1 weeks written notice.
If the employee has worked continuously with the same employer for more than 5 years, but less than 10 years; the employer must give at least 4 weeks written notice. The employee must give at least 2 weeks written notice.
If the employee has worked continuously with the same employer for more than 10 years, but less than 15 years; the employer must give at least 6 weeks written notice. The employee must give at least 2 weeks written notice.
If the employee has worked continuously with the same employer for more than 15 years; the employer must give at least 8 weeks written notice. The employee must give at least 2 weeks written notice.
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 pays the employee as much pay as that employee would have received had the employee worked for his/her notice period.
The Right to End Employment Without Notice
There are times when an employer does not have to give an employee notice or pay in lieu of notice when ending the employee’s job. In order to end an employee’s job without notice or pay in lieu of notice, the employer must show that he/she:
- had made his/her expectations clear to the employee, and
- has warned the employee to change his/her behaviour, and
- has warned him/her that not improving his/her behaviour could lead to him/her being fired
This kind of action would be acceptable if, for example, the employee was late for work again and again. Of course, there are times, such as when an employer can prove that he/she had a good reason to fire the employee because, for example, the employee has stolen. Then the employee can be fired without warning or notice.
It is important to know that the Employment Standards Board and the Employment Standards Division have said over the years that ending an employee’s job is not always the best way to handle problems with an employee. In some cases, progressive discipline may be used to deal with problems.
Depending on the problem the employer is having with an employee, it may be better to correct the problem by using progressive discipline 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 has trouble learning the job may just need several spoken and written warnings. The discipline must depend on how severe the problem is.
Another condition that the Employment Standards Board and the Employment Standards Division consider is condonation. Condonation means that the employer has not corrected a behaviour in the past. Condonation is an issue when, for example, an employer ignores an employee’s poor performance at work and then one day fires the employee for the same poor behaviour.
The Employment Standards Board and the Labour Standards Division say that 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.
Other Times When Notice Does Not Need To Be Given
The Employment Standards Act says that there are times when a 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 employer for less than 6 months
- when the employer offers the employee other reasonable employment
When an Employer Has Given 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, and
- may not require the employee to use remaining vacation during the notice period unless the employee agrees, and
- must pay the employee all the wages he/she is entitled to receive