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Nelligan O'Brien Payne gratefully acknowledges the contribution of Alexander Dezan, Student-at-Law in writing this blog post.

Most people do not think about what will happen if they are terminated from their job until after they are terminated. However, all employees would benefit from knowing a little about the legislative scheme that governs their entitlements, in the event their employment does unfortunately come to an end by way of termination.

If you have been fired from your job without cause, you might be surprised to learn that even if you are not unionized, you are entitled to notice of your termination, or payment in lieu thereof, and oftentimes also a severance payment. What is more surprising, however, is that to understand what you might be entitled to requires a history lesson.

In 1867, Canada’s Constitutional architects outlined the powers held by federal and provincial governments. These are defined in sections 91 and 92 of the Constitution Act, 1867, which divide those employers who are subject to federal jurisdiction and those who are subject to provincial jurisdiction, respectively. The compensation scheme for most employees falling within federal jurisdiction can be found in the Canada Labour Code. For those who fall within Ontario’s jurisdiction, an employee’s compensation scheme can be found in the recently amended Employment Standards Act, 2000.

There are some significant differences between compensation entitlements under the federal and provincial schemes. These differences are important to keep in mind when determining what you are entitled to and also ensuring that you do not miss your opportunity to receive these entitlements.

Here are three important things every employee should know:

1) Notice

So long as an employee has worked at least three consecutive and continuous months, every employer in Ontario must give them either notice or pay in lieu of notice upon their termination. Pursuant to the Employment Standards Act, 2000, provincial employees are entitled to, generally speaking, one week of notice for every completed year of service with their employer, including one week if more than three months and less than one year have been worked, up to a maximum of eight weeks. This means that you are entitled to a minimum of one, and a maximum of eight, weeks’ notice of your termination.

Federal employees falling under the Canada Labour Code’s provisions are entitled to at least two weeks of written notice or pay in lieu of notice. Just like in the provincial context, this provision applies only if the employee has worked at least three consecutive and continuous months with that employer.

2) Severance

In addition to notice of your termination, you may also be entitled to severance pay.

If you have worked for the same provincial employer for over five years and that employer has a payroll of over $2.5 million, you will be entitled to one week of pay for each completed year of service to a maximum of 26 weeks. You will also be entitled to a prorated amount of severance pay for your non-completed year of work.

If you have worked for the same federal employer for over 12 months, you will also be entitled to a severance payment, being the greater of either: two days of wages for each completed year of service, or five days of wages.

3) Know When to Act

The minimum entitlements outlined above may or may not be established in your employment contract. If they are included but improperly worded, not included, or simply not offered to you upon termination, you may be entitled to recover even more compensation than simply your minimum entitlements described above. Nevertheless, whether you should file a complaint pursuant to the statute for your minimum entitlements or pursue your employer for greater sums through the court system is a decision you should make with advice from an employment lawyer.

Provincial employees have the benefit of newly amended limitation periods when bringing a complaint under the Employment Standards Act, 2000, which came into effect on February 20, 2015. The most important are:

1. Two years for unpaid wages (which includes termination and severance pay). If the wages became due before the change came into effect on February 20, 2015, the previous six month limitation period will still apply.

2. Twelve months for vacation pay.

Federal employees have more stringent time constraints to bring complaints under the Canada Labour Code. Furthermore, these limitation periods apply only to employees who have worked continuously for twelve consecutive months for their employer. The limitation periods are:

1. Ninety days for an unjust dismissal complaint; and

2. Six months for unpaid wages.

Regardless of which system you fall under, all employees have two years to bring a claim for wrongful dismissal.

Nobody plans on being terminated from their job, but knowing what you are entitled to will make it easier if you are. If you are terminated from your employment, it is best to speak with an employment lawyer to help determine what you are entitled to and which avenue is best for you.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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