Following the termination of your employment, you may wonder if the termination package offered to you is sufficient or if you may be entitled to more. In the absence of a reasonable termination package, you may wish to negotiate a more equitable package with your employer, or alternatively, you may have grounds to claim that your employer has wrongfully dismissed your employment.
Accordingly, we review some factors to consider when determining whether to accept the termination package offered to you.
STATUTORY NOTICE VERSUS REASONABLE NOTICE
Employers provide dismissed employees with notice of termination, either in the form of written notice or pay in lieu, to temporarily assist the dismissed employee in searching for new employment.
Notice of termination may be given to a dismissed employee in accordance with either statutory notice or reasonable notice.
Statutory Notice: In Ontario, the Employment Standards Act, 2000 (“ESA“) prescribes the minimum notice period that an employee is entitled to if their employment has been terminated without cause. Specifically, the ESA mandates a dismissed employee’s notice period based on the length of their employment, as outlined below.
| Period of employment | Notice required |
| Less than 1 year | 1 week |
| 1 year but less than 3 years | 2 weeks |
| 3 years but less than 4 years | 3 weeks |
| 4 years but less than 5 years | 4 weeks |
| 5 years but less than 6 years | 5 weeks |
| 6 years but less than 7 years | 6 weeks |
| 7 years but less than 8 years | 7 weeks |
| 8 years or more 8 weeks | 8 weeks |
Reasonable Notice: Following termination of employment, an employee may be entitled to notice or pay in lieu of notice greater than his/her statutory entitlements depending on his/her employment contract as well as a variety of other factors, as described below.
HOW DO I KNOW IF I AM ENTITLED TO REASONABLE NOTICE?
Employers may limit an employee’s entitlements upon termination by way of a valid and enforceable termination clause within the employee’s employment contract. However, the notice period set out in the contract must provide the employee with at least the minimum statutory notice period upon termination.
Absent the inclusion of details regarding the notice period upon termination in an employment contract, a dismissed employee may be entitled to reasonable notice.
HOW MUCH REASONABLE NOTICE AM I ENTITLED TO?
The amount of reasonable notice that an employee may be entitled to is assessed on a case-by-case basis. Nevertheless, the following four (4) factors are the main considerations used by the courts to assess what is reasonable:
- Character of employment: Employees with more specialized skills or more senior positions may be entitled to a longer notice period than an employee with a lower-level position. The reason for this is that there may be fewer job opportunities for individuals with more specific or specialized skills.
- Length of service: Generally, the longer an employee’s tenure, the longer the notice period he/she may be entitled to.
- Age of employee: Older employees may be entitled to a longer notice period by virtue of the fact that it may be more difficult to secure new employment.
- Availability of similar employment: The more difficult it is to find new employment, the longer the notice period. This may be the case if the employee is in a highly specialized field or if there is an economic downturn that has affected the labour market.
ACCESSING YOUR TERMINATION PACKAGE
If your employment has recently been dismissed and you are considering whether to accept the termination package offered to you, you may wish to consider the following:
- Whether you are being provided with your minimum statutory entitlements only;
- Whether you may be entitled to reasonable notice; and
- Whether you would be entitled to a higher notice period based on the reasonable notice factors (as outlined above) and wish to consider negotiating a more equitable termination package with your employer.
TORONTO TERMINATION PACKAGE LAWYERS
To better understand your rights and the options available to you in relation to your termination package, please contact, Toronto employment lawyers, Sultan Lawyers, at (416) 214-5111 or here.
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