This blog is the final installment of a three-part series called ‘Employment for Foreign Workers’. You can view part one here and part two here.
As a temporary foreign worker (“TFW”) in Canada, it can be quite overwhelming and stressful to determine what you are entitled to upon the termination of your employment.
Generally, termination triggers an obligation for employers to support their former employees as they search for comparable employment. This obligation is likely greater when an employer dismisses a foreign worker because the courts have generally recognized that foreign workers are usually more vulnerable in the labour market when compared to Canadians or permanent residents since they often have restricted employment rights while in Canada.
Accordingly, both employers and foreign workers should be aware of the obligations and entitlements upon termination to avoid claims of wrongful dismissal or otherwise.
Open Work Permit vs. Employer-Specific Work Permit
When working in Canada, a foreign national may be issued either an open work permit or a closed, employer-specific work permit. An open work permit authorizes a foreign worker to work for any employer in Canada, whereas a foreign worker holding an employer-specific work permit is restricted to working in a specified occupation, for a specified employer until the expiry of the work permit.
Where a foreign national is dismissed and holds an open work permit, they will generally be able to secure new employment with any employer in Canada (subject to some restrictions) and commence their mandate immediately. However, where a foreign national is dismissed and holds an employer-specific work permit, the individual will likely face additional challenges since he will not only be required to find another Canadian employer willing to not only employ them but also support them for a new work permit. In this case, the foreign worker will not be authorized to begin working until a new work permit has been issued.
Statutory Entitlements
In Ontario, most employers are required to provide notice of termination in accordance with the Employment Standards Act, 2000 (“ESA“). The minimum notice required to be given to an employee, including a foreign worker, is one (1) week per year of service to a maximum of eight (8) weeks. Some employers must also provide severance pay to those who have been terminated from their employment if the employer has an annual payroll of $2.5 million or more.
The ESA provides for minimum standards only. As such, employees who are terminated without cause may be entitled to reasonable notice under the common law if their employment contract does not attempt to limit their entitlements upon termination to the ESA.
Additional Entitlements
Foreign workers who are wrongfully terminated on a closed work permit may be entitled to a longer notice period. Specifically, foreign workers holding employer-specific work permits face additional hardships in obtaining new employment, as their work authorization in Canada restricts them to work for a specific employer. Recent case law shows that courts have recognized this hardship and are increasingly sympathetic to closed work permit holders.
Accordingly, a foreign worker may be awarded a longer notice period in order to support their transition into new employment. Given this, in determining the appropriate amount of notice a foreign worker is entitled to, we encourage employers to consult with experienced employment counsel in order to determine an appropriate notice period to provide upon dismissal.
Further, foreign nationals are entitled to remain in Canada until the expiry of their work permit, even if their employment has been terminated. As such, if a foreign national has any remaining time on their work permit upon the termination of their employment, they are eligible to remain in Canada.
If a foreign worker subsequently obtains new employment, their new employer may engage in the process of obtaining a new employer-specific work permit for the foreign worker by way of a Labour Market Impact Assessment application (“LMIA”) or if applicable, an LMIA exemption. However, the foreign worker will not be able to commence new employment until a new closed, employer-specific work permit is issued.
Securing Counsel
If you are a temporary foreign worker in Canada and you have been terminated from your employment and you are looking for clarification on your entitlements, including in relation to wrongful dismissal, please contact Toronto employment and immigration lawyers, Sultan Lawyers at 416-214-5111 or here.
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