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Termination of Employment

  1. Do the notice of termination provisions of The Labour Standards Act apply to collective agreements and written contracts of service?
  2. Does notice of termination of employment have to given in writing?
  3. May an employer terminate the employment of an employee without notice?
  4. When may an employer terminate employment without giving notice?
  5. What is the period of written notice that has to be given by the employer and the employee?
  6. May an employee quit without giving the required notice?
  7. May the employer hold back wages when an employee terminates employment without giving notice?
  8. Is notice of termination required in the construction industry?
  9. Does notice have to be given if the employer is only temporarily laying off an employee?
  10. What is a temporary lay-off?
  11. If an employee is temporarily laid-off and the lay off exceeds 13 weeks in a consecutive 20 week period, what is the employees status under the Act?
  12. What additional notice or pay in lieu of notice is the employee entitled to in these circumstances?
  13. What is a group termination of employment?
  14. Are notice requirements different in a group termination of employment situation?
  15. When must an employee whose employment has been terminated be paid any wages they are owed?
  16. What is pay in lieu of notice?
  17. May the vacation period form part of the notice period?
  18. When may an employee terminate employment without giving notice?

 

1. Do the notice of termination provisions of The Labour Standards Act apply to collective agreements and written contracts of service?

Yes, but only if the collective agreement or the written contract of service is silent on notice, or if the period in the agreement or contract that is required to be given is not the same for the employer and employee.

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2. Does notice of termination of employment have to given in writing?

Notice of termination has to be in writing.

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3. May an employer terminate the employment of an employee without notice?

Not ordinarily. An employer or employee may only terminate employment with written notice of termination subject to the exceptions noted in the next answer.

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4. When may an employer terminate employment without giving notice?

Notice of Termination is not required in the following circumstances:

  • Where the employee has:
    1. wilfully refused to obey a lawful instruction of the employer;
    2. has committed misconduct;
    3. has been so neglectful of duty that the interest of the employer is adversely affected;
    4. breached a material condition of the contract of service that in the opinion of the director or the Labour Relations Board hearing a complaint, warrants summary dismissal.
  • Where the employer pays the equivalent normal wages, including overtime earnings, in lieu of notice (one to six weeks pay, depending upon the employees length of employment).
  • For a lay-off of one week or less.
  • The employee is employed for a firm non-renewable term or for a specific task where the term or task does not exceed 12 months and termination doesn't occur before the term or task is completed.
  • Where the employer has to terminate as a result of an unforeseen economic or climatic conditions beyond the foreseeable control of the employer, or as a result of a major breakdown or destruction of plant machinery or equipment.
  • Where a person has been employed for less than 3 months.

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5. What is the period of written notice that has to be given by the employer and the employee?

During the first 3 months of employment, no notice of termination is required to be given by either party.

For employment from 3 months up to 2 years, 1 week’s written notice is required to be given by either party.

After 2 years but less than 5 years employment, 2 weeks notice must be given by either party.

After 5 years but less than 10 years employment, 3 weeks notice must be given by either party.

After 10 years but less than 15 years employment, 4 weeks notice must be given by either party.

After 15 years employment, 6 weeks notice must be given by either party.

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6. May an employee quit without giving the required notice?

There are circumstances when an employee may quit without giving notice but before an employee takes that action, he/she should contact the Labour Standards Division.

Some examples of circumstances that would justify an employee terminating employment without notice are:

  • If the employer has:
    1. mistreated the employee;
    2. acted in a manner that might endanger the health or well being of the employee;
    3. breached a material condition in the contract of service that, in the opinion of the Director, warrants notice not be given.
  • The employee allows the employer to keep wages in lieu of notice.
  • The person has been employed for less than 3 months.

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7. May the employer hold back wages when an employee terminates employment without giving notice?

Only if the employee gives consent to the employer allowing the employer to withhold the correct amount of wages in lieu of notice. If the employee does not agree, then the employer is required to deposit the amount of the wages in question into the Unpaid Wages Account and the Director of Labour Standards will determine the issue in accordance with the Labour Standards Act.

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8. Is notice of termination required in the construction industry?

No, notice is not required either by employee or employer.

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9. Does notice have to be given if the employer is only temporarily laying off an employee?

Yes, notice of temporary lay-off has to be given, either one to six weeks notice depending on the length of service of the employee. No notice is required, however, if the lay-off is for less than one week.

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10. What is a temporary lay-off?

It is a period of lay off up to 13 weeks in duration in any 20 consecutive week period.

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11. If an employee is temporarily laid-off and the lay off exceeds 13 weeks in a consecutive 20 week period, what is the employees status under the Act?

At the expiry of 13 weeks of "lay-off", the employment is terminated.

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12. What additional notice or pay in lieu of notice is the employee entitled to in these circumstances?

At the time of the original "lay-off" the employee should have received one to six weeks notice. The temporary lay-off provisions do not provide employees with additional notice periods.

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13. What is a group termination of employment?

A group termination is the termination of the employment of 50 or more employees in a four (4) week period.

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14. Are notice requirements different in a group termination of employment situation?

The Act requires written notice of intention to terminate be given to each employee. The periods of notice are:

  • eight weeks for 50 to fewer than 200 employees
  • twelve weeks for 200 to fewer than 500 employees
  • sixteen weeks for 500 or more employees

Written notice must also be given to the Minister responsible for the Labour Relations Agency immediately after serving of notice on the employees. In that notice the Minister must be made aware of the number of employees involved, the period of notice involved and the reason for the mass termination of employment. If notice is not given to the Minister, no action can be taken by the employer to terminate the services of those employees. Although an employer provides a notice of intention to terminate to the employees, the employer must also give the written notice of termination within the specified time limits.

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15. When must an employee whose employment has been terminated be paid any wages they are owed?

Within 1 week from the date of termination, an employee must be paid:

  • all wages owing;
  • all vacation pay owing; and
  • pay in lieu of notice, if applicable.

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16. What is pay in lieu of notice?

Pay in lieu of notice is the payment of the employee's normal wages if the appropriate written notice (depending on the employee’s years of service) is not given upon termination.

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17. May the vacation period form part of the notice period?

Unless both parties agree, the employer shall not require, nor shall the employee take, vacation as the notice period.

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18. When may an employee terminate employment without giving notice?

The employee has reached retirement age.

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