When the Employer Ends the Employment

This information sheet tells about when an employer fires, suspends, or lays off a worker.

Under the Labour Standards Code, employers must tell an employee in writing that they will fire or suspend or lay off that employee. This is called giving notice. Notice is the letter telling the employee that he will no longer work for the employer after a given date. It is also the time between when the employee receives the letter and the date the letter says is the employee's last day of work.

How much notice an employer must give an employee depends upon how long the employee was employed. The following table shows the notice times for each period of employment.

How Much Notice in Writing?

If the employee has worked for	then the employer must give
more than 3 months but less than 2 years	1 week
between 2 years and 5 years	2 weeks
between 5 years and 10 years	4 weeks
more than 10 years	8 weeks

If the employer does not want to give the employee notice, the employer must give the employee pay in lieu of (in place of) notice. This means that the employer must pay the employee as much pay as he would receive if he worked for his notice period.

The Right to End Employment Without Notice

There are times when an employer does not have to give an employee notice or pay in lieu of notice when ending the employee's job. In order to end an employee's job without notice or pay in lieu of notice, the employer must show that the employer has

• made their expectations clear to the employee
• warned the employee to change his behaviour
• warned the employee that not improving his behaviour could lead to his being fired

This kind of action would be acceptable if, for example, the employee was late for work again and again. There are times when the steps above would not need to be followed. For example, if the employer can prove that the employee has stolen, then the employee can be fired without warning or notice.

Ending an employee's job is not always the best way to handle problems with an employee. In some cases, progressive discipline may be used to deal with problems.

Progressive Discipline

Depending on the problem an employer is having with an employee, it may he better to correct the problem by using progressive discipline rather than by ending the employee's job. Progressive discipline can begin with spoken warnings, move to written warnings and suspensions, and then end with firing the employee. For example, an employee who has trouble learning the job may just need several spoken and written warnings. The discipline must depend on how severe the problem is.

Condonation

Condonation means that the employer has not corrected a behaviour in the past. Condonation is an issue if, for example, an employer ignores an employee's poor performance at work and then one day fires the employee for the same poor behaviour. If an employer condones an employee's behaviour and then fires him without notice, the employer may be inviolation of the Labour Standards Code. An employee has to be told that the employer will no longer allow the poor performance. The employee must understand what will happen if his performance does not improve.

Other Times When Notice Does Not Need to Be Given

The Labour Standards Code says that there are times when an employer does not have to give notice or pay in lieu of notice that the employee will be fired or laid off. Some examples are listed below:

• when an employee works for the employer for less than three months
• when a person works for the employer for a set term or task no longer than 12 months
• when there is a lack of work that the employer did not expect and could not avoid
• when the employer offers the employee other reasonable employment
• when a person has reached the age of retirement according to the employer's established practice or policy
• when a person works in the construction industry
• when a person is laid off or suspended for 6 days or less

Employees with 10 Years of Service

The Labour Standards Code says that an employee with more than 10 years of service cannot be fired or suspended without good reason. What is good reason will depend on the employee's and employer's circumstances.

To show that the employer had good reason, he may have to show all of the following:

• The employer has made their expectations clear to the employee.
• The employer has warned the employee to change behaviour.
• The employer has warned the employee that not improving behaviour could lead to being fired

There may be circumstances, like a theft, in which an employer may fire an employee with 10 years of service and not have to follow those three steps.

When the Director of Labour Standards or the Labour Standards Tribunal finds that an employee with more than 10 years of service has been fired without good reason, the employer may be ordered to bring the employee back to the job with full back pay dating to the date the employee was fired. If the employee does not wish to go back to the job, the Director of Labour Standards may order a resonable alternative remedy.

Firing 10 or More Employees

The Labour Standards Code says that an employer must give notice to employees and the Minister of Labour and Advanced Education when firing or laying off 10 or more employees within four weeks. The amount of notice groups of employees are entitled to receive depends on the numbers being laid off:

• 8 weeks for between 10 and 99 employees
• 12 weeks for between 100 and 299 employees
• 16 weeks for 300 or more employees

When the Employer Gives Notice

When an employer has given the employee proper notice that the job is ending, the employer:

• may not change the employee's rate of pay or any other condition of employment, such as benefits
• may not require the employee to use remaining vacation during the notice period unless the employee agrees
• must pay the employee all the wages that he or she is entitled to receive at the end of the notice period

When a Business Is Transferred or Sold

It is important to know that the Labour Standards Code says that an employee's employment is not broken if a business is transferred or sold in any manner. If an employee worked for both the seller and purchaser of a business, he or she may be entitled to notice that the job is ending or pay in lieu of notice based on how long the employee worked with both the past owner and the person who buys the business.

Jobs Not Included under the Labour Standards Code

People who work in the following professions are not covered by the Labour Standards Code's rule about the employer ending the employment:

• real estate and car salespeople
• certain commissioned salespeople who work outside the employer's place of business, but not those on an established route
• anyone who works on fishing boats
• anyone in a union with a collective agreement in force
• practitioners or students in training for architecture, dentistry, law, medicine, chiropody, professional engineering, public or chartered accounting, psychology, surveying, or veterinary science (for the purposes of reinstatement claims for 10-year employees only)
• people employed in a private home by the householder to provide domestic service for a member of the employee's immediate family or for 24 hours or less per week.