By Howard Levitt and Peter Carey
Since it’s the beginning of the new year, let’s go back to basics and revisit the one issue that crops up in our practice consistently: obligations of employees once they decide to fire an employee.
Many employers and employees remain under the misapprehension that the notice period for a fired employee is governed by the Employment Standards Act (we are only speaking about non-unionized workplaces. For most unionized ones, the Act does set out their entitlement). At first blush this seems reasonable. After all, the ESA does state that it set outs out the law governing non-unionized employment in Ontario.
The act also sets out with considerable particularity the notice that must be given to a dismissed employee. To make matters even more confusing, if you contact the province’s Ministry of Labour it will advise you that notice periods are governed by the act. This leads to some interesting discussions as we advise clients that the government isn’t wrong, it is just not right.
The ESA sets out the minimum notice to which a dismissed employee is entitled. If a soon to be ex-employee contacts the Ministry of Labour and the ministry acts on that employee’s behalf, that is the notice that they will obtain for that employee.
However, if that fired employee were to go to court, they would receive common law notice, which is invariably substantially more notice than the act provides for.
There are a...
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