Information collected: February 2005
It is always important to make sure that you have the most up-to-date information about legislation in your jurisdiction. Check your province or territory's employment
Most organizations have a probationary period at the beginning of the employment relationship. However, no province or territory has specific employment standards for “probationary” employees. As noted above, all jurisdictions do allow for an employer to terminate the employment of an employee at the beginning of her/his employment without notice or payment in lieu of notice, unless the reasons for termination are because of discrimination as prohibited by human rights codes/acts.
After the first month(s) of employment as stated in the employment/labour standard for your province or territory, the minimum standards for notice or payment in lieu of notice will apply, regardless of whether or not the employee is classified as probationary by your organization.
In most provinces, the employment/labour standards also allow for no notice of termination for fixed term contracts where the employee has been hired for a specific term or task of 12 months or less, unless the employer is ending the contract before its fixed term.
The exemption from providing notice with a fixed term contract is contingent upon the employment ending at the exact date specified in the contract.
For most provinces, exemption from providing notice is contingent upon a fixed term contract of 12 months or less. This does not mean that an employer can enter into one 12-month contract after another to avoid the obligation of providing proper notice of termination. The employment/labour standards for most provinces include rules on how to determine if the fixed term is for longer than 12 months and will therefore require notice. In most provinces, back-to-back contracts, and contracts with little time in between, are added together to determine if the 12 month exemption has been exceeded.
Consult the employment/labour standards for your province for the specific details on how to determine if a fixed term contract has exceed the exemption from notice period and therefore notice is required.
If an employee is incompetent or the employee's conduct is so unacceptable that it seriously impacts on the organization and gives rise to a breakdown in the employment relationship, you can terminate the employment of the employee without notice or payment in lieu.
Termination with cause is difficult to prove and the onus will be on the employer to show that the employee's actions were very serious or show a pattern of behaviour.
In most circumstances, an employer must provide written notice of the intent to terminate employment and the termination date. If an employer wants the termination to take effect immediately, most employment/labour standards allow employers the option of payment in lieu of a working notice period (a written notice of termination and the date upon which employment ends is still required).
Payment in lieu of notice is based on the normal weekly salary of the employee. Benefits must also be covered for the notice period. Some legislation also states the date by which payment in lieu must be made.
Check the employment/labour standards for your jurisdiction for the specific details on how payment in lieu is calculated and when the payment is due.
Termination without cause is often the result of restructuring the organization or changes in funding. The termination is related to the position, not the individual's performance or conduct.
In some cases, an employee through no fault of her or his own may not be a good fit with the needs of the organization. In other cases, the employee's performance may be poor but it does not meet the legal standard for termination with cause. As long as the employer has – in fairness and good faith – made reasonable efforts to help the employee meet the expected standard and has given the employee time and support to improve, the employer may terminate the employment of the employee by giving notice or payment in lieu of notice as required by legislation.
In a termination without cause, there is no legal obligation for the employer to give a reason. However, when being terminated without cause, most employees want to know why. If you provide a reason, it is important to be fair and honest about the reason for such a termination. Under no circumstances should you allege that you have cause for termination when in fact you do not.
After the first month(s) when no notice is required, the length of advance notice that is required by law for termination without cause is directly related to the length of time the employee has been with the organization.
1 week after 3 months
2 weeks after 2 years
4 weeks after 4 years
5 weeks after 6 years
6 weeks after 8 years
8 weeks after 10 years
1 week after 3 months
2 weeks after 1 year
3 weeks plus one week for each additional year after 3 years to a maximum of 8 weeks
2 weeks after 6 months
4 weeks after 5 years
1 week after 3 months
2 weeks after 2 years
3 weeks after 5 years
4 weeks after 10 years
6 weeks after 15 years
2 weeks after 3 months to 3 years
2 weeks plus one week for each additional year after three years to a maximum of 8 weeks
1 week after 3 months
2 weeks after 2 years
4 weeks after 5 years
8 weeks after 10 years*
2 weeks after 3 months to 3 years
2 weeks plus one week for each additional year
after three years to a maximum of 8 weeks
1 week after 3 months
2 weeks after 1 year
3 weeks after 3 years
3 weeks plus one week for each additional year after 3 years to a maximum of 8 weeks
2 weeks after 6 months
4 weeks after 5 years
6 weeks after 10 years
8 weeks after 15 years
1 week after 3 months
2 weeks after 1 year
4 weeks after 5 years
8 weeks after 10 years
1 week after 3 months
2 weeks after 1 year
4 weeks after 3 years
6 weeks after 5 years
8 weeks after 10 years
1 week after 6 months
2 weeks after 1 year
3 weeks after 3 years
3 weeks plus one week for each additional year after 3 years to a maximum of 8 weeks
Information collected: February 2005.
* In Nova Scotia, special rules apply in some situations where an employee has been employed by the same employer for 10 years or more. Check with a lawyer or the Labour Standards Office for interpretation of the labour standards when terminating a person who has been an employee for 10 years or more.
Some jurisdictions require that an employee who is terminated without cause be provided with severance pay. This will depend on the size of the employer and the length of service of the employee.
It is always important to make sure that you have the most up-to-date information about legislation in your jurisdiction. Check your province or territory's employment/labour standards website for the most accurate information.
Preparation for the possibility that you will have to terminate the employment of an employee starts before the employee is hired by having a termination policy or an employment contract that states the organization's responsibilities upon termination. The employee should be advised about the employer's disciplinary and termination policies before being hired.
When looking back, an employee should never be completely surprised by a termination. Once an employee starts work, expected conduct should be clearly explained and the termination policy should be restated. Throughout the employment relationship, the employee should be given appropriate supervision, feedback on performance, and time to improve. Problems with conduct or performance should be addressed promptly. It is also important for the employer to provide employees with timely information about budget issues, in cases where employment could be affected.
When a termination is necessary, whether it is with or without cause, the employer must treat the employee with dignity. The employer should carefully consider how to conduct the termination meeting in a way that is respectful and compassionate.
Your organization should have a policy on termination which complies with the employment/labour standards for your jurisdiction. Employment/labour standards legislate the minimum acceptable standards for notice or payment in lieu; your organization may decide to provide more than the minimum notice or payment in lieu. The policy should address:
Termination can be very difficult for the employee and requires confidentiality, respect and compassion on the part of the employer. If an employee believes she or he has been wrongfully dismissed, then the treatment the employee received before, at, and after termination of employment will become part of the evidence considered when making a judgment in the case. If the employer did not treat the employee in "good faith", a court might order the employer to pay the employee additional compensation by lengthening the period of notice. This is referred to as "Wallace damages":
In the Wallace Decision (a well-known case on termination) the Supreme Court of Canada stated:
In the course of dismissal, employers ought to be candid, reasonable, honest, and forthright with their employees and should refrain from engaging in conduct that is unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive.
Important! It is important that an employee should never be completely surprised by a termination. Surprise is usually the case when a manager has not communicated the next steps to an employee who is misbehaving or performing incompetently.
Another aspect of the process that is important to consider is how an actual termination will take place. This is particularly important when the termination of employment takes effect immediately (terminated with cause or is terminated without cause but with payment in lieu of notice).
Even in cases of serious misconduct, the employer must show that the incident was properly investigated. Consider suspending the employee with pay, pending an investigation, rather than rashly terminating her or his employment.
The steps to be taken on the day that an employee is notified of her or his termination should be carefully planned.
Important! When terminating the employment of a valued employee due to circumstances beyond your control, focus on the employee's strengths, and offer any assistance you are able to give to help the person find new employment.
It is helpful to make a script to help you remember all the important information you need to cover during the termination meeting.
When a dispute about termination occurs, an employee has some options for seeking resolution. If an employee believes that her or his employment has been terminated because of discrimination, she or he may pursue a claim through the human rights commission or through the courts, but generally not to both. If the employee proves that the termination of employment was unlawful because of discrimination, the human rights commission may reinstate the employee to her or his position. A court cannot do so but can only provide damages to the employee.
If an employee believes that she or he has not received sufficient notice, payment in lieu of notice, or severance pay when the termination of employment was without cause, she or he can choose to direct the complaint to the employment standards authorities or the courts, but not to both.
If the employee believes that there was no cause for termination, and yet the employer has asserted cause, the employee can choose to complain to the employment standards authority or issue a claim in court, but not both.
For a dispute directed to the courts, common law and civil law (Québec) will be used in addition to statutes to resolve the dispute. Common law is based on the decisions made and upheld by the courts, and is therefore always evolving. If an employee's claim of wrongful dismissal directed to the courts is successful, the employer will be required to pay financial compensation to the employee that is usually more than what the employee would receive by statute.
Constructive dismissal is when there is a fundamental change in the employment relationship that amounts to a dismissal.
An employee must indicate to the employer that she or he is not accepting the change in order to later attempt to assert that she or he has been constructively dismissed.
An employee may make a claim for constructive dismissal to the courts or, in some jurisdictions, to the employment standards authority. In deciding the merits of the case the courts will determine if the change in the employment relationship was so fundamental that it amounted to a termination of employment and, if so, what compensation is appropriate.
Wrongful dismissal is a legal claim made before the courts about the cause (in the legal sense) or length of notice/payment in lieu of notice given to the employee when she or he was terminated from employment.
If the claim of wrongful dismissal is justified, then the courts will look at the contract of employment, whether or not it is in writing, and under common law or civil law in Québec, to determine “reasonable notice” and the appropriate financial compensation in lieu of notice. Under common law “reasonable notice” has been determined by the courts by looking at things such as: age, profession, experience, length of service, nature of the employment and factors related to the ability of the employee to find similar employment. Common law notice periods and payment in lieu as decided by the courts are often significantly more than the statutory requirements, especially for people in senior management positions.
In cases of wrongful dismissal, the courts will also look at the way in which the employee was treated before, during and after termination of employment. If the employer did not act in good faith, the amount of damages awarded to the employee may be even greater (see "Wallace" damages explained above).
Many employees in the ECEC sector are very dedicated to the mission of the organization, the families it serves, and their colleagues in the organization.