June 9, 2004by Israel Foulon LLP
Question: I’ve been working at the same job for nine years, but I never signed an employment contract. I was dismissed last week, and paid eight weeks’ salary in lieu of notice. I know that’s enough termination pay under the Employment Standards Act, 2000, but I’ve heard I may be entitled to more. Is that true?
Answer: The Employment Standards Act, 2000, (ESA) sets out the minimum notice periods employees and employers are entitled to agree to in employment contracts. It is designed to give employees a basic level of protection from agreeing to unfair notice provisions as a result of their weaker bargaining position. Therefore even when an employee’s employment contract states he is entitled to less notice that required by the ESA, this provision of the contract will not be enforced by the courts. But it will not be replaced by the ESA minimum requirements.
When the employment contract has no notice provision, or where it has an unenforceable notice provision, the common law rules will determine the employee’s entitlement to notice. The common law rules are generally more generous than the ESA minimums.
The common law determines notice entitlement based on job position, length of service, salary and age of the employee. In theory it is intended to represent the amount of time it would take the dismissed employee to find a new job in a comparable position at a similar salary. Executives will be entitled to longer notice periods, in recognition of the difficulty of finding new executive positions, and older employees will receive more notice as it may be harder for them to find employment. An employee with nine years of service may be entitled to anything from five to 18 months’ notice, depending on other factors.
If you are interested in pursuing the issue, it is a good idea to speak to a lawyer who will help you determine the viability of your claim.
Peter Israel is the senior partner in the Toronto law firm of Israel Foulon LLP – Employment and Labour Lawyers. He can be reached at 416-640-1550 or firstname.lastname@example.org. A version of this article originally appeared in the Carswell publication, Canadian Employment Law Today