Wrongful Termination


Wrongful Termination

Are the notice and severance provisions in the Employment Standards Act or Canada Labour Code all that an employer is required to give an employee when firing them without cause?

Not necessarily. The Employment Standards Act and the Canada Labour Code establish the minimum notice or severance in lieu of notice that an employer is obliged to provide. However, the common law (which is law developed by judges in decisions of courts) has established that employees are entitled to “reasonable notice” of termination, which can be much more than what is required by statute. Reasonableness depends on several factors including the character and length of employment, the employee’s age, gender, experience, training and qualifications, and the availability of similar employment.

If an employer has a written contract with their employee that deals with notice and/or severance, then the provisions in the contract will determine how much notice the employer is required to give the employee they terminate without cause, so long as it is not less that what they would be required to give under the applicable statute. Employers are not allowed to contract out of the minimum notice provisions set out in the Employment Standards Act and Canada Labour Code. If the contractual provisions dealing with notice and severance are not worded properly, the entire section of the contract could be void, in which case the common law rules for calculating notice apply.

Can I require an employee that I terminated to sign a release as a condition that must be satisfied before I give them a severance package?

You cannot require an employee to sign a release if you are simply providing them with the notice or severance pay required by the applicable statute. However, if you are offering a severance package that exceeds the requirements of the statute, you may require that the employee sign a release in exchange for any amounts in excess of the statutory minimum.

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