When an employer is terminating an employee without cause, they have three options with respect to the notice they are providing:
1. Pay out the employee the value of the notice period but no longer require them to attend work, otherwise known as pay in lieu of notice, this can be through a salary continuance or a one time lump sum payment; or
2. Inform the employee of their last day of work and continue to have them attend the workplace until that date, otherwise known as working notice; or
3. A combination of (1) and (2).
But what happens when your employer decides to put you on working notice and they don’t give you a firm date? Or what happens if you end up working past an originally set date?
The Courts have made it clear that when putting an employee on working notice there are some specific requirements in order for that working notice to be considered valid and sufficient.
First, as an employer you must provide a certain date of termination in order for the notice to be valid. The Employment Standards Act, 2000 (the “ESA”), requires that an expiration date on the end of an employment period be provided and failing to do so is a violation of the legislation. Furthermore, the end date must be sufficiently in the future to comply with the legislation in terms of the minimum amount of notice that the employee is entitled to, otherwise you will have to provide payment in lieu of the rest of the notice period.
Second, if you permit an employee to continue to work past the fixed termination date the prior notice of termination may be deemed void and the employment relationship continues. It would be expected that a new notice period be provided to the employee with a set date.
Regulation 288/01 to the ESA, suggests that an employer may only extend the period of working notice of provincially-regulated employees by thirteen weeks or less without having to provide fresh notice. In regards to federally-regulated employees, however, the answer is less clear. Arguably, section 232 of the Canada Labour Code limits employers ability to extend an employee’s period of working notice to no more than two weeks without having to provide fresh notice.
This is further examined in the case of Di Tomaso v Crown Metal Packaging Canada Ltd, 2011 ONCA 469 (CanLII) (“Di Tomaso”) stands for the proposition that: “clear and unambiguous’ notice of termination must include the final termination date.”
Di Tomaso also clarifies the effect of Ontario Regulation 288/1 referred to above. The defendant-employer in Di Tomaso provided the Plaintiff with a period of working notice but then extended it for five consecutive periods, each less than thirteen weeks. Cumulatively, however, the Plaintiff worked more than thirteen weeks beyond the date he was meant to be terminated. The court found that Ontario Regulation 288/01, properly construed, “contemplates a single period of temporary work that is not to exceed 13 weeks. If the temporary work exceeds that duration, fresh notice is required.”
And remember, if you are to be provided with severance because you qualify (see our blog post on the difference between termination pay and severance pay for more information), this cannot be provided via working notice and must be paid out as a lump sum payment according to the ESA. If you are looking for more information on whether or not working notice has been executed properly for your matter, contact Monkhouse Law today for a FREE 30 minute phone consultation to explore your options. To arrange your free confidential 30 minute phone consultation make sure to contact us today.]]>