CANADA Law and Practice Contributed by: Christopher Pigott, Rachel Younan, Jacob Wagner and Felisha Jagiah, Fasken
7. Termination 7.1 Grounds for Termination Individual Termination
and Alberta, has employment standards legislation imposing obligations on employers where the num - ber of employees dismissed at the same time sur - passes a prescribed threshold. The minimum number of dismissed employees required to attract the mass termination notice requirements ranges from ten to 50 employees, depending on the jurisdiction. The required amount of notice in a mass termination is based on the number of terminated employees, rather than the employee’s length of service. In a unionised workplace, the collective agreement established through the bargaining process between a union and the employer will almost always provide a protocol governing employer obligations and employee rights where individual or mass lay-offs occur. 7.2 Notice Periods In circumstances where an employee is dismissed without cause, written notice of termination – or pay in lieu of notice – must be provided by the employer. Although statutory minimum notice requirements vary across jurisdictions, in all cases the notice require - ment increases according to an employee’s length of service. The common law – as well as civil law in Quebec – prescribes a supplemental “reasonable” notice peri - od, which is typically well in excess of the statutory notice entitlements required by provincial and fed - eral legislation. What constitutes reasonable notice is determined on a case-by-case basis, having regard to the employee’s length of service, age, position, and the availability of similar employment. Common law notice periods typically fall within a general range, depending on the nature of employment and the terminated employee’s characteristics. The reason - able notice entitlement for a long-service employee have increased in recent months and can now range upwards of 24–28 months. In Ontario and at the federal level, employment stand - ards legislation creates an entitlement to severance pay for eligible employees. Severance pay is intended to recognise and reward long-term employees for their years of service. Severance pay is not the same as notice of termination, or pay in lieu thereof, and will be
In a non-union employment relationship, employers can terminate an employee’s employment for just cause on a summary basis or, in most jurisdictions in Canada, without cause upon provision of notice of termination or pay in lieu thereof. Except in some jurisdictions, an employer is generally not required to provide a reason for electing to terminate an employee on a “without cause” basis. By contrast, in a union - ised workplace, the collective agreement between the union and the employer will almost always provide that employees can only be terminated upon an asser - tion of just cause. An employer must provide notice of termination to the employee in writing. During the statutory notice period, an employer must not reduce an employee’s wages or alter any term or condition of employment, including contributions to any existing benefits plan. Employees in Nova Scotia, Quebec and the federal jurisdiction who are non-unionised and are non-man - agerial may resort to a statutory mechanism to chal - lenge their termination if they have the requisite level of service. There are specific procedures to challenge a termination in these circumstances and reinstate - ment upon a finding of unjust termination is a potential remedy. An employer’s failure to adhere to requirements in employment standards legislation may result in the imposition of fines or orders to compensate employ - ees for losses incurred as a result of the employer’s contravention. In most Canadian jurisdictions, employment stand - ards legislation requiring notice – or pay in lieu thereof – is not automatically applicable where an employee has been laid off on a temporary basis. However, once a lay-off surpasses a specified period of time, it will generally be considered a termination and employer obligations regarding notice of termination will apply. Mass Termination Mass terminations attract different statutory treat - ment. Every jurisdiction, except Prince Edward Island
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