Thursday, June 30, 2011

Provincially Regulated Employees - Part 6: Have You Been Dismissed?

In this final component of our six-part blog series outlining the workplace rights and obligations for both federal and provincial employees, we look at the Employment Standards Act protections and procedures available for employees who have been terminated.

Dismissal/Termination of Employment
As a provincially regulated employee, you are entitled to written notice prior to your dismissal . The notice period required under the ESA is generally determined by how long you were employed.

For example, in Ontario, any employee with 1 year or less of service is entitled to at least 1 week of notice or payment in lieu of notice. You are not entitled to any notice if you were terminated during probation (less than 3 months). At least 2 weeks of notice or payment in lieu of notice must be given to employees with 1-3 years of service; at least 3 weeks for service between 3-4 years and so on up to at least 8 weeks of notice or payment in lieu of notice if the employee has served 8 years or more. If you did not receive the appropriate notice period prior to your termination, you are entitled to a lump sum payment equal to the regular wages for a regular work week that you would have otherwise been entitled to during the written notice period. You also earn vacation pay on your termination pay, and your employer must continue to make whatever contributions would be required to maintain your benefits that you would have been entitled to if you had continued to work through the notice period.

An online calculator is available here if you are interested in calculating how much termination pay you should have received from your Employer. Your employer must pay you your termination pay on the later of either seven days after your employment is terminated or on your next regular pay date.

In Ontario, if you worked for a business which had a payroll of over $2.5 million and you worked there for at least five years, you are also entitled to severance pay. An online calculator is available here if you are interested in finding out how much Severance Pay you are owed.

Importantly, even if your profession is listed under the ESA exemptions in Part 2 of this series, you are still entitled to the minimum termination. Only construction workers on buildings, sewers, pipelines, and tunnels cannot claim severance pay, and only construction employees involved in road building or working on sewers and watermains are prohibited from claiming both severance pay and termination notice and pay.

If you are guilty of willful misconduct, disobedience or willful neglect of duty that is not trivial and has not been condoned by the employer, or if you refused an offer of “reasonable alternative employment” by your former employer, you are not entitled to notice, termination pay or severance pay.

Filing an Employment Standards Claim
If you believe that your employer is not following the ESA, you should discuss the matter with your employer. There is also a self-help kit available on the Ministry of Labour website which can help you identify and resolve any problems you might have regarding unpaid wages, public holiday pay, overtime, minimum wage, termination notice or pay in lieu and severance pay. If you are unable to resolve the matter with your employer, you may file an Employment Standards Claim. You must complete a claim form, which you can obtain from the Ministry of Labour’s website, by mail or in person at a Service Ontario Centre.

If you are filing a claim because you did not receive reasonable notice of termination or pay in lieu of notice, you must file the claim within 6 months of the date your wages were due. It is free to file a claim, and the maximum amount of money that your former employer can be ordered to pay is $10,000.

Concluding Note
For more information on your rights and obligations as an employee in a provincially regulated industry, please contact your nearest Employment Standards Office at 1-800-531-5551. You can also visit the Employment Standards Office website.