Legal Ease
by Doug Lester
Every week, employers and employees come to see me for advice on wrongful dismissal claims.
Most often they come to me after the dismissal has taken place, and they want to know their rights and obligations. Many have already checked and learned that the Employment Standards Act prescribes the amount of severance payable to an employee whose employment is terminated without just cause.
However, what they are not aware of is that the Employment Standards Act prescribes the absolute minimum that an employer must provide in the form of notice or damages in lieu of notice.
The act itself provides that after three months of employment, an employer must give an employee an amount equal to one week’s wages as severance compensation and that the amount of compensation required increases gradually, to a maximum of eight weeks’ wages payable.
What the Employment Standards Act does not tell you is that the decisions of judges, or what is called the “common law,” most often gives an employee greater entitlement to damages than the standards prescribed by the act.
The courts have repeatedly ruled that an employer is required to give an employee reasonable notice of its intention to terminate the employment relationship in the absence of just cause. What is reasonable notice varies from case to case, but is determined by a number of factors, including the person’s age, education, skill and ability, level of responsibility within the organization, and the availability of alternate employment within the person’s chosen occupation.
Also, many people are unaware that it is possible for an employer to give an employee written notice of an intention to terminate the employment relationship at a date in the future. When this is done, the employee continues to work for the duration of the notice period. At the end of that time, the job ends and the employer does not owe the employee any further payment as long as the notice was reasonable in the circumstances.
Whether you are an employer, or an employee, you should be aware that there are multiple factors at play that will dictate what is appropriate notice or damages in any given termination situation. If you are in doubt, you should consult a legal professional to avoid the pitfalls that can arise when it comes to termination of employment.
Lester is a partner with RDM Lawyers. He practises in the areas of labour and employment law and personal injury law. If you have questions or comments about this article, please email legalease@abbynews.com