Do You Have To Give 2 Weeks Notice in Ontario?
When letting an employee go in Ontario, employers are required to provide notice of termination or termination pay in lieu of notice. Notice of termination is the time period that begins when the employee was informed, they are being fired up until the employee’s last day of work. Employers must be aware of what their obligations are, as failure to comply with the minimum notice of termination standards under the Employment Standards Act (ESA) can lead them to further and increased damages against themselves.
What Is Notice of Termination?
Notice of Termination is the advanced warning an employer provides their employee in which they indicate their intention to terminate the employee without cause. Employers usually provide an employee with a termination severance package or pay in lieu of notice.
The notice usually comes in 2 forms: statutory notice and common law notice.
- Statutory notice: this is the minimum amount of notice that an employer must give to their employee according to the ESA.
- Reasonable notice: this is the amount of notice an employer must provide to their employee according to the common law precedents.
Reasonable notice tends to be more lucrative than statutory notice.
When determining reasonable notice, we refer to the Bardal factors which examine:
- The employee’s position
- The employee’s length of service
- The employee’s age; and
- The availability of similar employment.
The ESA outlines that employees are entitled to a written notice about their employment termination if they have worked for a minimum of 3 months for the same employer. Employers must provide their employees with an official notice of termination which is addressed directly to the employee. This notice could be in person, via email, or by mail, keep in mind that delivery must be able to be verified.
The ESA guarantees that most employees in Ontario who have worked for 3 months or longer for the same employer are entitled to written notice or pay instead of notice is also known as termination pay. The ESA sets out the minimum notice requirements. The length of notice is determined by whether the employee worked for a federal or a provincially regulated company. If an employer wished to terminate the employee immediately without providing any written notice, employees are entitled to receive terminated pay instead of notice. Employers may also give employees a combination of both notices and pay in lieu.
Notice of Termination Requirements Under the ESA
| Length of Employment | Notice or Pay Instead of Notice |
|---|---|
| Between 3 months to less than 1 year | At least 1 week’s notice or pay instead of notice |
| 1 year or more and less than 3 years | At least 2 weeks’ notice or pay instead of notice |
| 3 years or more and less than 4 years | At least 3 weeks’ notice or pay instead of notice |
| 4 years or more and less than 5 years | At least 4 weeks’ notice or pay instead of notice |
| 5 years or more and less than 6 years | At least 5 weeks’ notice or pay instead of notice |
| 6 years or more and less than 7 years | At least 6 weeks’ notice or pay instead of notice |
| 7 years or more and less than 8 years | At least 7 weeks’ notice or pay instead of notice |
| 8 years or more | At least 8 weeks’ notice or pay instead of notice |
Employers’ Requirements During the Notice Period?
Employers must continue to pay employees their regular wages and continue to make the corresponding contributions that are required to maintain the employee’s benefits plan.
Mass Terminations
For mass terminations, there are specific rules when the employment of 50 or more employees is terminated at an employer’s establishment within a four-week period.
When a mass termination occurs, the employer must submit a Form 1 known as Notice of Termination of Employment to the Director of Employment Standards. In addition to providing employees with individual notices of their termination, employers are required to post a copy of Form 1 given to the Director of Employment Standards in the workplace where it will come to the attention of the employees it affects on the first day of the notice period.
In Ontario, the minimum notice period will not be based on the workers’ length of employment, but on the number of employees who have been terminated:
- 8 weeks’ notice for the termination of 50 to 199 employees
- 12 weeks’ notice for the termination of 200 to 499 employees
- 16 weeks’ notice for the termination of 500 or more employees
How is the Termination Notice Paid?
The purpose of providing notice to an employee is to allow the employee sufficient time to find comparable employment. The employer either has the option to allow the employee to work until the notice period ends or terminate the employee immediately and compensate with pay in lieu of notice which is to be equivalent to the salary and benefits the employee would have been provided until the end of the notice period. If the employer decided to pay in lieu of notice, this remuneration must be paid no later than 7 days after the termination date or on the next regular payday the employee was entitled to, whichever is later.
Conclusion
Employers must keep in mind that when it comes to providing notice of termination they should always be in writing and that the ESA sets out the minimum amount of notice that an employee may be entitled to. In most cases, employees may be entitled to much more than what the ESA sets out, which is where common law notice supplements the amount the employee is truly entitled to.
Employers must always ensure that the notice they provide their employees is suitable to their particular case and employees must always be aware of what they are entitled to under statutory law and common law.
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Secure Your Fair Severance with Achkar Law
Negotiating a severance package can be complex, but Achkar Law is here to assist you every step of the way. Whether you’re an employee, executive, or employer, we provide tailored guidance to ensure your severance package meets your needs and complies with Ontario laws.
- Employees: Understand your rights and options when negotiating a severance package and how we can help you maximize your entitlement.
- Executives: Learn more about our executive severance services and how we can negotiate terms that reflect your contributions and position.
- Employers: Discover how to effectively manage severance negotiations while protecting your business interests and maintaining compliance with legal requirements.
Contact Achkar Law today to discuss your severance package and ensure you receive or provide fair treatment.
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