If you’re an employer or an employee and the economy has you feeling like you’re caught in a country and western CD that ‘s on repeat play (lost my job, my truck, my wife, my dog), you might be wondering what surprises Ontario employment law has for you.
If you’re the employee who’s being downsized, you’re wondering what happens to you if you get terminated and how much you get. If you’re the employer who’s downsizing, you’re wondering how to cut your losses and how much it is going to cost when you have to let staff go. These days unless you’re selling chocolates, tranquilizers or credit counseling, chances are you’ve thought about the “what if’s” of employment termination. Of course, if you work for government or the public sector, you can skip this and go on to read the travel section.
Ontario employment law confuses most folks, and with good reason. It confuses a lot of lawyers, so don’t feel bad. The problem starts with the fact that we have both a statute that gives minimum periods of notice for termination but we also have a common law court system that has its own rules about periods of notice, that don’t necessarily agree with the statute.
Yeah – I know – how can that be? It’s the legal system, silly – you’re supposed to be confused. That’s how we stay in business. Ok, follow me here and I’ll try to demystify.
The statute is the Ontario Employment Standards Act (ESA). When you’re up at 3 am worrying about the economy, pull it out and check out s. 57. In a nutshell, it provides for notice of termination of employment of between 1 and 8 weeks depending on length of employment, from 1 year to 8 years or more. You qualify if you’ve been working for 3 months or more.
Now, don’t start getting too depressed or too excited, depending on which side of this coin you’re on, because these minimum standards under the ESA don’t have much effect on what a court will do if an employee sues as a result of termination.
Ontario courts consider the ESA notice provisions as bare minimums. They can, and regularly do, award amounts that are greater – in many cases much greater. The problem is that there is no clear cut formula for the courts, so knowing what an employee is entitled to becomes a complicated exercise up there with reading the entrails of a goat.
Courts look at the particulars of each case – the character of the employment, the length of service of the employee, the age of the employee, and the availability of similar employment having regard to the experience, training and qualification of the employee. Clear as mud, huh? Bottom line – each case is different.
There was a time that employment lawyers would give you a rule of thumb of 1 month notice for every year of service – not so any more. I’ve seen cases with a secretary with 28 years service get only 12 months notice, and cases with a sales manager with only 6 months service get 10 months. Figure that out.
Either side – employer or employee – needs legal advice on what is appropriate in a termination. And if you thought you were confused, just wait until we talk about mitigation of damages…