17 Jan Mandatory Minimums instituted by the ESA in 2022
Common misconception: following the mandatory minimums instituted by the Employment Standards Act guarantees no wrongful dismissal claims
A common misconception some employers have is that they believe if they grant their employee the mandatory minimums laid out in the Employment Standards Act (ESA) when terminated, that they cannot be presented with a wrongful dismissal claim.
Unless the employment agreement of the employee explicitly limits their entitlements to the ESA mandatory minimums, they could be qualified to receive more termination notice or pay in lieu of notice.
Factors that Impact Length of Notice Period
Termination notice is the amount of time an employee is granted to prepare for their termination before the date their employment relationship is officially severed. For example, according to the ESA, a minimum notice would consist of two weeks’ notice for an employee who has worked for two years. However, how much notice an employee legally deserves under the common law can greatly differ for each employee.
Many times, the employee is entitled to much more notice or pay upon their dismissal. And it should be calculated for each individual employee. The amount of notice an employee is entitled to is calculated by age, employment duties, length of employment, and availability of similar jobs.
If the employer has promised the employee a certain amount of termination notice in their Employment Contract that is more than the ESA minimum, then the employer is legally required to provide that amount of notice. In this case, granting the employee minimum notice would not be legal, and the employee may file a wrongful dismissal claim.
Factors that Cannot Impact Length of Notice Period
There are circumstances where the notice period cannot be affected. An employer cannot decrease the entitled notice period if they are trying to avoid contributing to retirement benefits or a pension. The notice period cannot be determined based on avoiding this inevitability. Second, an employer may not limit the notice period because of their own economic issues. The financial situation of the employer should not affect what the employee is rightfully entitled to.
Further, employees should not expect their notice period to be lengthened based on the losses the employee will suffer because of their termination. This means that the employee cannot argue that losing this money makes them deserving of more notice because of the damages they will have to endure.
Employees also cannot expect that their notice period will be extended based on how long it will take them to find new employment. The notice period is calculated to provide the employee with a reasonable amount of time to find a new job, which is calculated by how long someone in a similar position would take to find new employment. If they exceed this time, the notice does not need to be extended.
If you wish to determine whether or not you should file a wrongful dismissal claim against your employer, please contact KCY at LAW by filling in an online consultation request or contact us by phone at 905-639-0999 to book your consultation today.