The amount of notice an employee is entitled to when terminated without cause in Ontario can be found in both the statutory law and the common law. There are minimum amounts required by the Employment Standards’ Act (the “ESA”) as well as standard entitlements based on established case law, or common law, in the province.
Under the ESA, minimum amounts are set as follows:
| 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 |
While these are the statutory minimums, common law has often established that reasonable notice is greater than these amounts. This common-law reasonable notice is influenced by various factors, including an employee’s age, years of service, position, and the availability of similar employment.
However, it’s important to note:
- Severance Pay: In addition to notice or pay in lieu of notice, employees who have been employed for 5 years or more and if the employer has a payroll of at least $2.5 million or severed the employment of 50 or more employees in a six-month period due to a permanent discontinuance of all or part of the business, may also be entitled to severance pay under the ESA.
- Common Law Notice: The common law can provide for significantly longer notice periods than those prescribed by the ESA, depending on factors such as the employee’s age, length of service, position, and availability of similar employment. Many employment contracts attempt to limit notice periods to ESA minimums, but such clauses must be carefully drafted to be enforceable.
- Termination Clauses: Employment contracts often contain termination clauses that specify the notice period. These clauses must meet or exceed the minimums set out in the ESA to be valid.
- Exceptions: Certain employees, like those in construction and some others, may be exempt from these notice requirements under the ESA.
- Constructive Dismissal: Situations where an employer makes a significant change to a fundamental term or condition of an employee’s employment without the employee’s consent might be considered a “constructive dismissal,” potentially entitling the employee to notice as if they were terminated.
If an employer fails to adhere to these obligations upon termination of an employee, it could result in a successful claim for wrongful dismissal. It’s important to note that any termination clause in an employment contract must meet or exceed these ESA standards to be enforceable. If such a clause attempts to provide less than the ESA minimums, it may be deemed unenforceable, exposing the employer to potential claims based on common-law reasonable notice.
This is a general overview and should not be taken as legal advice. Employment law can be complex, and individual circumstances can greatly affect legal rights and obligations. It’s always advisable for employers and employees to consult with a qualified employment lawyer to understand their specific situation.
For individuals seeking to review their termination clauses, or who believe they may have been wrongfully dismissed and are entitled to reasonable notice exceeding the ESA minimums, it is advisable to seek legal counsel. Toronto employment lawyers, such as Sultan Lawyers, can provide guidance and representation. They can be contacted at 416-214-5111 or via email to mlahert@sultanlawyers.com for legal advice tailored to specific circumstances.