chap 14

• ESA


  Employment Standards Act - provides employees with their minimum employment entitlements
• Employers can't give employees less than what the ESA provides for – but can give more than what it provides for
• Severance claim


  Employees who believe they have been dismissed without cause, must file their severance claim with either the Ministry of Labour or a civil court; they can't do both
• Civil court


  Often preferable to go to civil court given a civil court's greater monetary jurisdiction to award severance
• Withdrawing severance claim from Ministry of Labour

  Employees must withdraw a claim for severance from the Ministry of Labour within 2 weeks of making it otherwise their wrongful dismissal action will be forever barred under the ESA
• ESA severance pay and termination pay amounts

  Less generous than severance at common law
• Example of ESA vs common law severance

  • ESA severance pay - 20 weeks' pay
  • ESA termination pay - 8 weeks' pay
  • Common law severance entitlement - as high as 20 months' pay, or more, albeit subject to the employee's ability to find another job during the notice period
• ESA amounts are guaranteed irrespective of mitigation efforts or mitigation income earned
• Providing working notice of termination

  Often not a prudent choice for the employer as the continuation of the employment relationship may have become untenable
• Pay in lieu of notice

  In the form of ESA termination pay and severance pay, is often preferable
• Temporary layoffs under the ESA

  • Must be authorized by the worker under the contract of employment
  • Avoid employer having to pay termination and severance pay under the ESA
• Permitted kinds of layoffs under the ESA

  • Layoff of no more than 13 weeks in a period of 20 consecutive weeks (which can be unbenefited and unpaid)
  • Layoff of no more than 35 weeks in any period of 52 consecutive weeks as long as the employee receives substantial monetary payments from the employer and the employer maintains the employee's benefits
• If layoff conditions aren't strictly followed, you get a deemed termination of employment and the employee is entitled to be paid their severance
• Termination pay under the ESA

  • Requires 3 months of service to qualify
  • Employer is permitted to give a combination of notice and pay in lieu of notice
• Termination pay calculation


  • Review sample calculation on p. 513
• Severance pay under the ESA

  • General rule: 1 week's pay per year of service up to a maximum of 26 weeks' pay
  • Employee must have worked for the employer for a minimum of 5 years
  • Employer must also have a worldwide payroll of 2.5 million dollars or more at the time of termination
• Severance pay calculation


  • Review sample calculation on p. 522
• Communicating termination notice


  • Mail, fax or in person are acceptable methods of delivery
  • Termination notices must be posted in the workplace in the event of layoffs where employees have bumping rights over other employees
• Exceptions to individual termination and severance pay requirements under the ESA

  • Resignation or retirement
  • Wilful misconduct, wilful neglect of duty, or disobedience
  • Temporary layoff
  • Termination of a fixed-term employment contract
  • Independent contractor relationship
  • Where an employee's contract of employment is severed because of a strike
• Paying out ESA termination amounts on a "without prejudice basis"


  Allows the employer to later take a "just cause" position to deprive an employee of any remaining severance entitlement at common law
• When ESA severance payments must be made

  Within 7 days after the employment ends; or on the employee's next payday, whichever date is later