Unit 11 - Termination

Question 1

What are the 3 paths to termination?

Answer 1

1. Termination (Cause & Without Cause)
2. Temporary Layoff
3. Constructive Dismissal

Question 2

Payment in lieu of notice vs. Working period/notice

Answer 2

Paying the employee instead of giving them a working notice period when terminated. Offers the worker the money equivalent to what they would have received if they had continued to work through the notice period period + benefits/CPP.

Working period/notice is when an employer tells an employee that their employment will end after a given date and the employee is required to continue working for the duration of the notice period.

Question 3

Wilson v. Atomic Energy Canada Ltd (2016)

Answer 3

A case that indicated that federally regulated employees cannot be dismissed without just cause, regardless of whether they are unionized.

Thus, employment contract clauses that state that the employer has a right to terminate “without cause” are unenforceable.

Protects federally regulated, non-managerial employees employed with the org for at least 1 year.

Question 4

Bill 148 - Just Cause Protection

Answer 4

Bill 148 extends Just Cause protection to employees who are in the midst of first contract arbitration.

Employees are protected from discipline or discharge without just cause in the period between certification and the parties conclusion of a first contract, as well as between the date of a legal strike or lockout and the date of a new collective agreement.

Question 5

Up to how many weeks of termination notice or pay are employee’s entitled to under the ESA?

Answer 5

Up to 8 weeks

Question 6

Notice Period

Answer 6

The time from the employee’s termination notice until the period for working notice or payment in lieu of notice ends.

Question 7

Determining the appropriate termination notice is based on three different sources:

Answer 7

1. Common Law
2. ESA
3. The employment contract

Question 8

Bordal v. The Globe and Mail Ltd - what were the 4 factors used to determine how much notice an employee is entitled to under Common Law? The so-called Bordal Factors.

Answer 8

1. The employee’s age
2. Length of service
3. Character of employment
4. Availability of similar employment

Other factors, such as the employee’s health, language skills, pregnancy, or the employer’s refusal to provide a recommendation letter can, and have, been considered by the courts when determining what the appropriate notice requirement should be.

Question 9

What are the 3 main factors of context used to assess whether an employee has sufficient cause to terminate an employee. Identify the case that exemplifies this approach.

Answer 9

Context refers to the approach that courts often take in determining whether a termination is justified.

1. The employee’s disciplinary and performance history;
2. Their length of service; and
3. Any and all mitigating factors, including personal factors, that may have impacted or influenced the employee’s conduct.

Mckinley vs. BC Tel

Question 10

When is an employer entitled to provide termination pay to an employee?

Answer 10

An employer must pay an employee who is entitled to termination pay either seven days after the employee is fired, or on the employee’s next scheduled payday, whichever is later.

Question 11

Mass Termination

Answer 11

A mass termination is the termination of 50 or more employees within a period of four weeks.

Prior to a mass termination, the employer must submit Form 1 Notice of Termination of Employment) to the Director of employment standards.

Question 12

Mass Termination Notice

Answer 12

• 50 to 199 employees are terminated, they are entitled to eight-week’s notice.
• 200 to 499 employees are terminated, then they are entitled to 12-week’s notice.
• If 500 or more employees, then they are entitled to 16-week’s notice.

Question 13

Mass termination rules do not apply if:

Answer 13

1) The number of employees whose employment is being terminated represents not more than 10 per cent of the employees who have been employed for at least three months at the establishment, and
2) None of the terminations are caused by the permanent discontinuance of all or part of the employer’s business at the establishment.

Question 14

Mass Termination (10% rule)

Answer 14

A mass termination occurs if at least 10% of the workforce that have been employed at the org for at least 3 months were terminated.

Question 15

Constructive Dismissal

Answer 15

A fundamental change to the employment contract that is made without the employee’s consent, and without reasonable notice.

In order for any of these changes to actually constitute a constructive dismissal, the employee in question must somehow indicate that they object to these changes.

ALSO, any layoff longer than 13 weeks over the course of a 20 week period will be considered a constructive dismissal.

Question 16

Temporary Layoff Timeline

Answer 16

Any layoff longer than 13 weeks over the course of a 20 week period will be considered a constructive dismissal.

The layoff timeframe can be extended to 35 weeks in a 52 week period if certain criteria are met during the layoff. The criteria include the following:

• The employer is making payments to the employee.
• The employer is making payments to a benefits plan on the employee’s behalf.
• The employee is in receipt of unemployment benefits.

Question 17

Severance Pay

Answer 17

Severance pay is separate from termination pay, and its primary goal is to both compensate the employee for having lost their job, and to provide them with some small measure of security.

Question 18

Qualifying for Severance Pay

Answer 18

Not every employee is entitled to receive severance. In order to qualify, the employee in question must:

• Have had their employment severed;
• Have worked for their employer for five years or more;

and

• Their employer must have a payroll of at least 2.5 Million in Ontario;

or

• Have severed 50 or more employees within 6 months, due to all or part of the business closing.

Question 19

Severance Entitlements under the ESA

Answer 19

An employee is entitled to one week of severance per year of employment.

Multiply the employee’s earnings from an average week by the number of years that they have been employed with the company.

The maximum amount of severance that an employee can receive under the ESA is 26 weeks.