Getting fired can be one of the most stressful experiences anyone will go through in their lifetime. Following a termination, it is imperative to obtain advice from a knowledgeable employment lawyer as soon as possible to fully understand your options, receive clarification about your rights, address any potential risk, and ensure you walk away with the most advantageous arrangement.
At Sultan Lawyers in Toronto, we represent employees throughout the termination process: we can review your termination package, negotiate with your former employer, and represent employees in any litigation that may arise. We provide the protection you need following the termination of your employment. Let us focus on the legal aspects of your termination so that you can focus on moving forward and finding new employment.
Most provincially regulated employees in Ontario are entitled to notice of termination or pay instead of that notice (unless they have been terminated for cause). This also applies to employees who have been constructively dismissed.
Under the Employment Standards Act, any employee who has been employed for at least three months is entitled to notice of termination or pay in lieu of that notice. That is, an employee must be told a certain number of weeks in advance of their termination that they will be fired and must continue working for that period of time, or they must be let go right away but paid for the period of their notice.
So, for example, if an employee has been employed with a company for less than a year, the employee is entitled to one week’s notice during which time he will continue to work. In the alternative, if the company wishes to release the employee immediately, they can pay a week’s salary up front (i.e. the same amount of money they would have paid had the employee continued to work for one week).
| Length 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 |
It is important to note that this is the bare minimum that terminated employees are entitled to under the legislation. Under the common law, notice of termination is generally much higher than what is provided under the Employment Standards Act, and will take many factors into account including: the age of the employee, how long they were employed, their level of responsibility (i.e. were they an executive or other high-ranking position), their probability of finding comparable work, and how close they are to retirement, among other factors.
While many people refer to when they talk about termination packages, the term severance actually refers to something else under Ontario law. Severance pay and termination pay are not the same.
Severance pay is the compensation provided to long-term employees whose employment has been “severed”. It is intended to compensate them for the losses that come with the end of lengthy employment, such as loss of seniority, and similar. Only certain employees are eligible for severance, depending on the size of the employer, and how long the employee worked there.
Most employees in Ontario work in industries that are provincially regulated. A smaller number of Ontario employees, however, work in industries that are regulated by the federal government, including banking, radio and T.V. broadcasting, airlines, telecommunications, railways, and shipping. Instead of the Employment Standards Act, these employees are subject to the Canada Labour Code, which also provides for minimum standards that employers must comply with when terminating an employee.
Under the Canada Labour Code:
It is important to note that the Canada Labour Code only provides for a minimum threshold of rights. Under the common law, many employees may be entitled to much more notice or pay in lieu of that notice. You should never accept a termination package before consulting with a knowledgeable employment lawyer first.
The knowledgeable employment lawyers at Sultan Lawyers have advised hundreds of employees across various industries and sectors following their termination. We regularly review termination packages and represent employees in negotiating more beneficial terms for their departure. Where necessary we represent employees in wrongful dismissal and constructive dismissal complaints. When you are our client, you can count on our persistence in achieving the best results. Contact us online or at 416-214-5111 for a consultation.
An employer’s collection of benefits and money offered to a dismissed employee is known as a termination package. It may consist of additional perks, outplacement services, severance , and other forms of assistance.
When presented with a termination package, legal advice from an employment lawyer. This you can evaluate the offer’s fairness and suitability as well as your rights. With expert advice, you may decide on your severance and, if needed, negotiate better conditions.
Packages for are subject to change by employers. To review modifications, ensure legal compliance, and protect your rights, speak with an employment lawyer. Professional advice is required to comprehend and maybe negotiate revised conditions.
Severance pay is a component of a termination package, together with other benefits provided upon termination of employment. Severance pay is the monetary compensation for leaving a job, while the package may also include additional benefits, bonuses, or other types of support.
Yes, your termination package is negotiable. If you need help in securing just salary and benefits, think about speaking with an employment lawyer. They can support your interests during negotiations and help you navigate the process.
Rejecting a termination package may mean forfeiting benefits and money Before making any decisions, it is highly advisable to seek legal advice to full consequences.
Even if you are immediately re-hired, you maintain your severance pay, albeit the terms vary. Make sure you thoroughly review the details of your package. Speak with an employment lawyer for customized counsel on your particular circumstances.
Not necessarily.
Employees should not assume that their employer can lay them off as there are several decisions from the courts that state layoffs should not be used by employers unless it can be demonstrated that an employee has contracted for this with the employer (either directly or indirectly). Specifically, unilateral and fundamental changes to the terms of employment are generally illegal without an employment agreement, and usually, this in and of itself is insufficient without adequate compensation and/or notice.
Having said this, many employers initially relied on the “layoff” during the COVID-19 era. In proceeding this way, many employers likely decided to lay off employees in the hope that either the employees will agree with (and they can then argue that there was no dispute about the legality) or alternatively, a court will sympathize with employers because of the unforeseen nature of COVID-19 and its dramatic impact on the economy.
The reality is that employees can equally (and reasonably) argue that they should not be the ones to suffer as a result of the downturn and that this is a critical time for employees to receive termination pay to support their families through this extraordinarily difficult time. This is particularly the case since there is no telling how long it will take for an employee to find comparable employment in the COVID-19 era and termination pay is specifically intended to help employees during difficult transitionary periods (and to provide greater support when comparable employment is not plentiful).
The bottom line is that an employee should not assume that an employer has an unrestricted right to lay off employees and, in fact, being laid off may be viewed as an unjust removal of employees’ rights to economic support.
It is important to note, however, that on May 29, 2020, the Government of Ontario introduced Ontario Regulation 228/20 – Infectious Disease Emergency Leave. This Regulation automatically converted temporary layoffs occurring from March 1, 2020, onwards to a job-protected leave.
During the leave, the timelines for temporary layoffs as set out under the Employment Standards Act, 2000 do not apply as employees are considered to be on a job-protected leave and not a temporary layoff. This leave applies during the duration of the COVID-19 Period, which is expected to end on January 1, 2022. Beginning on January 2, 2022, treatment of legislation in relation to temporary layoffs and constructive dismissals will resume as previously applied before COVID-19.
Finally, and assuming a layoff is deemed to be legal, if an employer does not return the employee to work within the timeframe allowed for under the law in the relevant province (and comply with any other conditions relating to the layoff) then the employer automatically becomes liable for termination pay.
The answer depends on the type of application that was made and the work permit that was issued.
Specifically, terminations must be reported if a foreign worker is issued a Labour Market Impact Assessment (“LMIA”) based work permit under the Temporary Foreign Worker Program (“TFWP”) or was nominated under the Provincial Nominee Program (“PNP”).
Any changes in the employment status of foreign workers issued an LMIA-based work permit under the TFWP, including terminations, layoffs and resignations, must be reported to Employment and Social Development Canada (“ESDC”). Similarly, under the PNP, changes in employment status must be reported to the relevant provincial PNP office.
Employers are not, however, under a strict statutory requirement to report terminations of employment for foreign workers who are working without the requirement for an LMIA. This is most commonly the case when individuals are working under the International Mobility Program (“IMP”).
Setting this aside, if an employer has reasonable grounds to believe that an employee is working illegally, it is advisable for the employer to report the change of employment status for that individual with either Immigration, Refugees and Citizenship Canada (“IRCC”) or Canada Border Services Agency (“CBSA”).
Generally speaking, in Ontario, there are no legal parameters around the method of resignation. Employees should refer to their employment agreements to determine if the agreement defines any particular method of resignation. It may be prudent to have a conversation with your boss prior to resigning, in order to let them know personally and thank them for your time with the Company.
Employers in Canada do not have an unlimited right to lay off their employees.
The biggest reason for this is Canadian courts believe employees should be provided with income support to find another job. Layoffs do not provide this. Rather, layoffs allow employers to suspend an employee’s work without any income support.
Instead, the law has consistently stated that layoffs should only be used in limited circumstances, such as where an employee’s employment contract has specifically addressed this possibility.
By contrast, termination of employment triggers a wide range of employer obligations, including pay relating to employment standards and, potentially, common law notice payments (which could be months of financial support), intended to financially support the employee until they find other employment.
For this reason, where it is unclear whether an employee has agreed to be laid off (for example, where an employment contract does not address layoffs) and the employer proceeds to layoff the employee, the employee may have a claim for constructive dismissal on the basis that he or she was laid off without an agreement in his or her contract allowing for this.
If an employer violates a term of an employee’s contract, the employee may be successful in claiming that they have been constructively dismissed (and therefore that they should be provided with all the payments associated with termination).
Specifically, constructive dismissal occurs when the unilateral action(s) of an employer fundamentally alters an essential term of an employee’s contract such that a reasonable person would conclude that the employer no longer intends to be bound by the terms of the contract. Constructive dismissal does not, however, occur where the employee accepts the change(s) or does not make it known to the employer that he or she does not agree with the change.
Employees who are successful in making a constructive dismissal claim would be entitled to damages as if their employment was terminated.
It is important to note, however, that on May 29, 2020, the Government of Ontario introduced Ontario Regulation 228/20 – Infectious Disease Emergency Leave. This Regulation automatically converts a temporary layoff to a job-protected leave.
During the leave, the timelines for temporary layoffs as set out under the Employment Standards Act, 2000 do not apply as you are considered to be on a job-protected leave and not a temporary layoff. This leave applies during the duration of the COVID-19 Period, which is expected to end on January 1, 2022. Beginning on January 2, 2022, treatment of legislation in relation to temporary layoffs and constructive dismissals will resume as previously applied before COVID-19.
A temporary layoff occurs when an employer cuts back or stops an employee’s work without ending their employment relationship, including, for example, laying off an employee when there is a shortage of work. In Ontario, the Employment Standards Act, 2000 (“ESA”) sets out that a temporary layoff can last:
It is important to keep in mind that not every employer is able to rely on temporarily laying off their employees as layoffs are, generally speaking, aimed at businesses that are cyclical in nature and where an employee and employer are found to have agreed to layoffs as a condition of employment.
The ESA defines a termination as the following:
Generally, when an employer terminates the employment of an employee, they must accordingly provide the employee with either written notice of termination, termination pay, or a combination of both, as well as severance pay (if applicable). Employers often need to provide significantly more payment than what is prescribed under the ESA as they are often subject to common law reasonable notice requirements.
It is important to note that on May 29, 2020, the Government of Ontario introduced Ontario Regulation 228/20 – Infectious Disease Emergency Leave. This Regulation permits a temporary layoff to be converted to a leave. During the leave, the timelines for layoffs as set out under the ESA do not apply as you are considered to on a job-protected leave instead of laid off. This leave applies during the duration of the COVID-19 Period, which is expected to end on January 1, 2022. Beginning on January 2, 2022, treatment of the legislation in relation to temporary layoffs and constructive dismissals will resume as previously applied before COVID-19.
Reasonable notice describes what employees are entitled to at the time of the termination of their employment. The law states that, unless an employee has agreed in an employment contract to something else (and that contract is enforceable), employees whose employment is terminated without cause are entitled to a be provided with “reasonable notice” of the termination of their employment. Reasonable notice is essentially enough support for the employee to find alternative comparable employment.
While there is no fixed/specific number, it is not unreasonable to expect that an employee could receive between 3 and 5 weeks per year of service (with more for short service), up to a maximum of twenty-four months.
In most cases, the most influential factors in determining reasonable notice include the employee’s age, length of service, position (and related responsibilities), and the availability of similar employment.
Wrongful dismissal, constructive dismissal, and unjust dismissal are distinct legal concepts in Canadian employment law, each applying in different situations.
Wrongful dismissal occurs when an employer terminates an employee without providing the required legal entitlements, such as reasonable notice, pay in lieu of notice, or severance (where applicable). It can also involve bad faith conduct during termination, including failing to pay wages, providing insufficient notice, or mistreating the employee during the dismissal process.
Constructive dismissal happens when an employer does not formally fire the employee but instead makes significant, unilateral changes to the job that effectively force the employee to resign. This could include major pay cuts, drastic changes in job duties, or allowing a toxic or hostile work environment to persist. If proven, the law treats this as if the employee was terminated, entitling them to compensation.
Unjust dismissal is a specific legal remedy under the Canada Labour Code that applies only to employees in federally regulated industries (such as banking, telecommunications, and transportation) who have completed at least 12 months of continuous service. Eligible employees can challenge a dismissal they believe is unfair and may be entitled to remedies such as reinstatement or back pay. To qualify, the employee must typically file a complaint within 90 days, must not be a manager, and must not be covered by a union or collective agreement.
In summary:
Because each type of dismissal has different legal tests, rights, and remedies, it is important to seek professional legal advice to determine which applies to your situation.
In Ontario, employers generally don’t have access to details regarding whether you were fired from a job unless you voluntarily provide that information or if it is publicly known (for instance due to a legal dispute).
However, it’s important to keep in mind that potential employers may reach out to your employers for reference checks. During these checks they could inquire about your job performance reasons for leaving and whether you would be eligible for rehire. While previous employers are typically limited in what they can disclose due to privacy and defamation laws they can still share information about your employment history. For example, they may disclose whether you left voluntarily or were terminated.
Furthermore, if you were terminated with cause and this information is included in your employment records or if legal action was taken related to your termination there is a chance that future employers may come across this during background checks or through records.
Yes, foreign workers are entitled to the same rights as a Canadian or permanent resident in relation to termination of employment. This includes all rights under the Employment Standards Act, 2000 in relation to termination and severance pay, and entitlement to Employment Insurance (assuming basic eligibility is met).
If your employment has been terminated by your employer and you are unhappy with the termination package being offered, do not sign any contracts, agreements, or packages without first consulting with an employment lawyer. In fact, it is wise to always consult with an employment lawyer before signing any documents provided by your employer. An employment lawyer can help determine if the termination package offered by your employer is unreasonable and can help negotiate a better package should you be entitled to more than is being offered
An employee can be dismissed for being drunk at work, but employers cannot automatically terminate someone simply because alcohol is involved. Whether a dismissal is lawful depends on the circumstances.…
Generally, your employer will not automatically be notified if you file for bankruptcy. Bankruptcy is typically a personal financial matter, and many employees complete the process without their employer ever…
If your employer accuses you of stealing time at work, your first concern may be whether you can be fired or even face criminal consequences. Generally, no. Most allegations of…
© Sultan Lawyers. All rights reserved. Privacy Policy / Disclaimer
