Employee Frequency ASked Questions
The questions posed and answers provided are meant to be a guideline only. In seeking answer to legal questions, please seek the advice of a qualified lawyer.
Are there minimum notice requirements?
The Employment Standards Act provides that notice or payment in lieu of notice has to be given to the extent of one week for every year of employment up to eight weeks. In other words, if you worked seven years for a company, you should receive a minimum of seven weeks’ working notice (ie. communication that your employment will be terminated at a certain point in time) or payment in lieu of notice. However, if your employer has a payroll of $2.5 million and you worked in excess of five years, you may be entitled to additional severance provisions of one week per year of employment up to a total of 26 weeks. For example, a 17-year employee who qualifies, should receive, at a minimum, 8 weeks notice or payment in lieu of notice plus 17 weeks severance for a total of 25 weeks. In certain instances, an employee may qualify for notice under the common law (ie. additional payment in lieu of notice beyond the minimum standards provided by the Employment Standards Act).Back to top
Can I be forced to retire?
There is no longer mandatory retirement in Ontario. A person cannot be forced to retire. However, job availability or restructuring in the workplace may result in what some deem to be a "forced retirement".Back to top
Can I sue for an injury sustained at work?
In most cases, an employee cannot sue for an injury sustained at work. It is for these reasons that Workplace Safety legislation has been enacted. Injured workers can apply for benefits through the Workplace Safety and Insurance Board. Check the Board web site at www.wsib.on.ca
for further information. In some instances where there are allegations of gross negligence on the part of the employer, employees are allowed to bring personal actions. But these circumstances are very rare.Back to top
Can my employer make changes to my job when I return from maternity leave?
Changes in the workplace which can be deemed as changes in the normal course resulting from economic circumstances or market conditions are acceptable. An employer has to accommodate the return of the employee as much as possible. In some circumstances, jobs can be eliminated and, a review of the facts surrounding the change in the workplace may yield some answers as to the legitimacy of the actions on the part of the employer.Back to top
Can the employer make me start working different/hours/days/location?
An employer must provide the employee with adequate notice before making any alterations to the workplace terms. Notice is similar to the notice and entitlements under the Employment Standards Act. Depending upon the nature and degree of the changes, an employee may have greater remedies. These, of course, should be discussed with a lawyer.Back to top
How do I know that I have I been "wrongfully" dismissed?
This is a question of both fact and law and, given the circumstances, requires some analysis. If you are terminated without cause (i.e. for example, you were not insubordinate, you didn't commit a criminal act and you have a clean work record), then you may have been dismissed "wrongfully". Any employer has a right to terminate your employment. But if you did not do anything "wrong", the employer has an obligation to provide you with appropriate notice if you are being terminated.Back to top
How much "severance pay" should I receive?
In the language of employment law, "Severance Pay" is often used to describe "Termination Pay" or "Notice". In essence, this means the amount of pay in terms of appropriate notice that a person ought to receive for losing their job. This is not vacation pay which is calculated separately. "Severance Pay" is provided for in the Employment Standards Act (Ontario) as a minimum requirement. However, the common law also provides that severance or notice can amount to something as high as one month for every year of employment. The actual calculation of how much severance or notice a person should receive is dependent upon how long they worked for the employer, how difficult is the work, the state of the local economy, the age of the employee and a variety of other indicators. Though some cases are similar in a few shared aspects, each employment case is unique. Therefore, notice or severance may be different in each particular case. Careful and constructive analysis by a qualified lawyer is recommended.Back to top
I am being harassed at work; what can I do about it?
If the harassment is related to one of the heads of discrimination under the Human Rights Code (race, ancestry, sexual orientation, age, etc.) you can bring a complaint pursuant to the Human Rights Code. If the harassment is unrelated to these factors, you may be entitled to walk away from your job citing constructive dismissal or "forced resignation". However, the facts in each case have to be carefully examined before a person walks away from their employment.Back to top
I am being pressured to return to work or be cut off disability benefits. What should I do?
An employee should follow the advice of their doctor if they are to remain on disability. An employer who attempts to force an employee to return to work is doing so under threat of being censured by the Ontario Human Rights Tribunal. Furthermore, an employee may take an alternate route and sue for damages including punitive damages for the employer's conduct in this regard.Back to top
I walked off the job after a disagreement with my employer. What are my rights?
Your rights depend on why you left your employment. If your employer wanted you to do something illegal or dangerous, you have a right to refuse and ultimately walk away from the job if the employer is not acting reasonably. In some instances, this can be construed to be "constructive dismissal" or "quitting for cause". As in the case of "wrongful dismissal", you would be entitled to seek redress from the employer for forcing you to resign or to go work elsewhere.Back to top
I was injured at work. Can I be fired while I am off sick?
Yes, you can be terminated in circumstances where there is a likelihood that you will not be returning to work. Where the disability is short-term, an employer should not fire the employee. If the employee is fired, then a claim can be made pursuant to the Human Rights Code or the employee can sue for wrongful dismissal.Back to top
I'm having problems with my employer, what are the best ways to protect my legal rights?
Seek legal advice from a qualified lawyer who practises in the labour and employment sphere. There are ways to ensure that your position is protected including strategies for documentation of allegations as well as opportunities to file complaints with legal authorities such as the Ontario Human Rights Commission and the Ministry of Labour when such support is available.Back to top
My employer is in financial trouble. What happens if they go bankrupt?
If an employer goes bankrupt, there is a likelihood that you will not be able to receive any notice or payment in lieu of notice. However, outstanding wages are protected to a degree by the Bankruptcy Act as employees are considered "preferred creditors". As a "preferred creditor" you would be subordinate to the secured creditors such as banks. All creditors are subordinate to the CRA (formerly known as Revenue Canada). The CRA has a super priority over all other claims.Back to top
My employer said I had to sign a release or I would be fired and not given notice pay. Can I do anything now?
An employer cannot force an employee to sign a release at the time of termination without the employee receiving independent legal advice. A release that is signed without affording the employee an opportunity for independent legal advice can be set aside by an Order of the Court.Back to top
My Union is not helping me. What can I do?
Contact your Union Steward. If this does not work, contact your Union President. If the Union fails to heed your concerns, you can apply before the Ontario Labour Relations Board for failure on the part of the Union to represent your interests. This application may culminate in a hearing before the Ontario Labour Relations Board. Check the Board web site at www.olrb.gov.on.ca
for further information.Back to top
New owners have taken over the business. How does this affect my job?
If change in ownership is seamless (ie. if the employee goes to work and there is no true difference in the job or occupation from one day to the next) then seniority continues and the person remains employed. In some cases, a business is sold and the prior employer pays out or provides reasonable notice pursuant to the legal authorities prior to the new employer taking over the operation. Given that they received adequate notice, then the employees will start with zero seniority working for the new employer.Back to top
Someone outside the company is making allegations about me to my employer. What can I do about this?
If someone is making defamatory remarks-facts which are not true-you have a right to sue this individual. As soon as you are aware of the allegations, you should immediately contact your employer to set the record straight and to prevent these allegations from interfering with the employee in the workplace.Back to top
What are my rights if I've been let go because of my age, health or ethnicity?
You have a right to file a complaint pursuant to the Human Rights Code (Ontario) by making application to the Ontario Human Rights Commission. The legislation provides that "every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability". Remedies for breaches of the Code include payment of damages and/or reinstatement or accommodation in employment. For further information, please contact the Human Rights Commission at www.ohrc.on.ca
. After June 30, 2008, pursuant to the Human Rights Code Amendment Act, 2006, individuals will be able to file human rights complaints directly with the Human Rights Tribunal of Ontario at www.hrto.ca
.Back to top
What happens to a "non-competition" agreement when my job ends?
A "non-competition" agreement is literally an agreement whereby an employee agrees not to work for a competitor or start up a business in competition with his employer for a set period of time in a set geographical region. Usually, non-competition agreements parallel lengthy notice (termination pay) periods which allow the employee to have some form of support during the period of transition between their existing job and some new employment. In most cases, a non-competition agreement survives termination. However, everything depends upon the circumstances of the termination and the amount of notice or payment in lieu of notice a person may receive which will assist to support them during the period of time they are obliged to "not compete" with their former employer. A careful review of the non-competition agreement is required.Back to top
What is temporary lay-off?
Temporary lay-off is for a period of not more than 13 weeks in any period of 20 consecutive weeks. This is defined by the Employment Standards Act. However, if a lay-off is more than 35 weeks in a period of 52 consecutive weeks, it is considered a permanent lay-off. A permanent lay-off means that the employer is obligated to provide minimum notice or pay minimum severance pursuant to the Employment Standards Act.Back to top