In Canada, employers and organizations are required to give common law notice to employees if they’ve been let go without cause. It can be served in several weeks, months, or a couple of years.
The Canadian government states that the maximum time amount of common law notice is usually 24 hours. On the other hand, the minimum time is not less than three months.
The reason for the common law notice is to provide time to employees to help them find a new job. Employers may dismiss an employee without providing cause if they provide a reasonable notice before terminating their employment.
In this article, you’ll learn about how the common law notice and the Employment Standards Act are different from one another in Ontario.
What does the Common Law Notice Consist of?
In a common law notice, employers provide two types of reasonable notice, such as working notice and pay in lieu of working notice. For instance, an employee is given 3 weeks of working notice. For that, they need to continue working for three weeks, and then they’ll be fired.
If an employee is immediately terminated, the employer will be required to give pay in lieu of notice.
Hence, every case requires a specialized analysis of how long the reasonable notice will be. There is no definition that can be used to predict common law reasonable notice.
Till now, a fixed-term contract is generally allowed to be terminated by giving working notice or paying in lieu of working notice equal to the remainder of the fixed period. In comparison to that, usually an employee isn’t entitled to any common law notice even if they’re terminated without cause.
Now, let’s understand the differences between the ESA and common law dismissal with respect to wrongful dismissal in Toronto.
Source of Scope
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Employment Standards Act:
The ESA acts as a provincial statute to establish the minimum rights and responsibilities for a lot of employers and employees in Ontario. It is developed with the purpose of providing a basic floor of employment standards.
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Common Law:
Common law refers to the body of law created by judges via court decisions many years ago. It fills in the gaps where the ESA can’t work, offering a presumptive right to “reasonable notice” upon termination unless a valid contract specifies otherwise.
Calculation of Notice Period:
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ESA Minimums:
The ESA offers a strict, formulaic approach to termination pay according to the length of service of the employee.
The termination pay is one week per year of service, which could go up to a maximum of eight months.
Furthermore, an additional one week per year of service(maximum 26 weeks) will be there for employees with more than five years of service and who have an employer with a larger payroll.
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“Reasonable Notice” in Common Law:
Common law is fact-specific and highly discretionary. Courts keep several factors in consideration to determine a fair and justified notice period. These factors include:
- Age of the employee
- Length of service
- Character of employment, such as position or seniority.
- Availability of similar alternative employment, keeping education and training under consideration.
Furthermore, the result in common law can range from a few months to as much as 12-24 months of notice, which is often equal to roughly one month per year of service, substantially higher than ESA minimums.
Enforcement Mechanism and Legal Process
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ESA Claims:
An employee can file a complaint with the Ministry of Labour in Ontario for a violation of their minimum statutory entitlements.
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Common Law Claims:
If you want to pursue a common law claim, you need to sue your former employer in a civil court for a “wrongful dismissal” lawsuit.
The most important thing that you need to consider is that an employee generally isn’t entitled to file an ESA claim with the Ministry of Labour and sue in civil court for common law damages for the same termination. They’re supposed to choose one path only.
Contractual Effect
- Employers can put a limit on the employee’s common law entitlements by adding a clear and enforceable termination clause in the employment contract that will explicitly restrict compensation to the ESA minimums.
- If there’s no such valid clause, the presumption is that common law reasonable notice is applicable.
Employees are often entitled to significantly more compensation under the common law than under the ESA. Plus, seeking legal advice from an employment lawyer can help you understand your rights in a full and comprehensive way.
Why You Need an Employment Lawyer By Your Side While Filing for ESA or Common Law Claims?
Here are some essential reasons to consult an employment lawyer while filing for these claims:
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Legal Assistance:
As the legal arena surrounding these claims is way too complex, it becomes extremely important to have a knowledgeable individual by your side. This is where a lawyer specializing in employment cases can help you out. Their expertise and knowledge will further help you explore your options and be well-informed while taking legal steps.
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Guidance During Paperwork:
The lawyer will also guide you through the paperwork and important legal procedures to ensure that you don’t face any unwanted situation in court.
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Representation:
An experienced employment lawyer can also help you in negotiations and settlements by representing your side. They’ll protect and represent your interests, ensuring that they’re upheld and that you get the due you deserve.
Furthermore, they’ll also review every document and necessary application before filing them in court.
To Summarize
Getting fired due to wrongful reasons is the worst thing that can happen to you. However, when you understand your rights on a legal basis, you’ll be able to claim for a better settlement, which will help you get a significant severance pay and keep you covered till you find the next job.
Furthermore, it is important to seek legal advice and representation from an experienced employment lawyer who understands the nuances and depth of the legalities involved in the ESA and common law cases. This will further help you ensure a favourable resolution.