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Termination dates and Employment Standards Act.

Nothing. Stop asking them to put your termination date in writing. You are shooting yourself in the foot. Vague announcements indicating your job will be ending do not constitute notice of termination. That is a good thing for you. Given your 10 years of service, pursuant to the Employment Standards Act (ESA), you are entitled to eight weeks’ notice of termination. That can either be working notice or pay in lieu of notice or a combination of both. Since your employer clearly has a payroll in Canada of over $2.5 million per year you are also entitled to severance pay which is a week per year to a limit of 26 weeks. In your case, something over 10 weeks. Severance pay can never be taken care of by way of working notice. Even if they told you that you are finished two years from now, they would still owe you severance at the end. Those are just the minimums under the ESA. You are also entitled to reasonable notice at common law. Common law is what judges enforce. Let’s assume that after 10 years of service you would be entitled to eight months’ notice at common law. That amount includes the ESA minimums in almost all circumstances and is not in addition to the termination and severance pay required by the ESA. If they gave you a clear notice in writing indicating that you were finished and terminated on a particular date in mid-September, the employer would have given you eight months’ working notice. As a result, there will never be the need to go to a judge. You don’t get pay in lieu of notice if you actually got the working notice. The eight weeks’ termination notice required by the ESA would be taken care of by that eight months of working notice. Severance pay would not. Most employers don’t realize that even a long working notice period can never take care of that 10 weeks of severance pay. Say nothing about the severance pay until the end. If you alert them to the issue they may simply move up your termination date by 10 weeks and let you go in early July instead of mid-September. If they do that you will still have received a combination of working notice and cash equivalent to eight months and you will not have a claim for anything further. Courts have long held that in order for an employer to argue that they have provided working notice that offsets any pay in lieu of notice owed, the notice should be clear, particular, and unequivocal. Don’t help your employer by encouraging them to get their act together. Be patient and keep your nose down. QUESTION: Last week my employer announced that as of the end of the month she is selling all of the assets of the business. As of the first of the next month I will be working for a new employer doing the same job and getting the same pay and benefits. Have I been terminated? What are my rights? ANSWER: You have been terminated. Contracts of employment (whether they are in writing or not) are personal contracts and cannot be transferred. You cannot send your neighbour in to work for you one day when you feel like staying home and the employer cannot simply tell you you are working for a new company without your consent. If you show up for work on the first of next month you will have accepted the new employment and all of your entitlements for the purposes of the ESA, and likely the common law, will be intact. If you choose not to show up your employer is going to owe you the minimum payments required by the ESA that I talk about above. You would not have a claim that you would take before a judge for reasonable notice at common law. Unlike your entitlements under the ESA, your common law entitlements have deducted from them any money you make from new employment having shown that you looked for and accepted reasonable alternative employment. You will have turned down reasonable alternative employment and the judge would award you nothing. If you are happy to leave with just your ESA minimums, don’t show up to work for the new employer and file your claim with the Ministry of Labour if the employer does not pay. Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com