Severance Pay

• ISBN: 978-1-4606-1988-9 (HTML)
• ISBN: 978-1-4606-1987-2 (Print)
• ISBN: 978-1-4606-1989-6 (PDF)
• Revised: May 2013
• Content last reviewed: May 2013
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This guide is provided for your information and convenience only. It is not a legal document. For complete information, refer to the Employment Standards Act, 2000 and its regulations.

See also: Severance Tool

"Severance pay" is compensation that is paid to a qualified employee who has his or her employment "severed." It compensates an employee for loss of seniority and job-related benefits. It also recognizes an employee's long service.

Severance pay is not the same as termination pay, which is given in place of the required notice of termination of employment.

When Severance Occurs

A person's employment is "severed" when their employer:

• dismisses or stops employing the employee, including an employee who is no longer employed due to the bankruptcy or insolvency of his or her employer;
• "constructively" dismisses (please refer to "Constructive Dismissal" in the "Termination of Employment" section of the Guide) the employee and the employee resigns in response within a reasonable time;
• lays the employee off for 35 or more weeks in a period of 52 consecutive weeks;

  For the purposes of the Severance provision, an employee who receives less than one quarter of the wages he or she would have earned at the regular rate for a regular work week is considered to have been on a week of layoff. A week of layoff does not include a week when the employee is unavailable for work, unable to work, suspended for disciplinary reasons, or not provided with work because of a strike or lockout at his or her place of employment or elsewhere. Although the 52 weeks are consecutive, the 35 weeks are not required to be consecutive.

• lays the employee off because all of the business at an establishment closes permanently (an "establishment" can, in some circumstances, include more than one location); or
• gives the employee written notice of termination and the employee resigns after giving two weeks' written notice, and the resignation takes effect during the statutory notice period.

Employee Resigns After Receiving Notice of Termination

An employee who has been given a written notice of termination can resign and continue to keep the right to severance pay. To keep this right, the employee must give the employer two weeks' written notice of his or her resignation. The resignation must also take effect during the statutory notice period–the period of written notice that is required to be given by the employer.

If an employer provides longer notice than is required, the statutory part of the notice period is the last part of the period that ends on the date of termination.

Qualifying for Severance Pay

An employee qualifies for severance pay when his or her employment is severed and he or she:

• has worked for the employer for five or more years (including all the time spent by the employee in employment with the employer, whether continuous or not and whether active or not)
  and
• his or her employer:
  • has a payroll in Ontario of at least $2.5 million;
    or
  • severed the employment of 50 or more employees in a six-month period because all or part of the business closed.

See also: Severance Tool

Amount of Severance Pay

To calculate the amount of severance pay an employee is entitled to receive, multiply the employee's regular wages for a regular work week by the sum of:

• the number of completed years of employment;
  and
• the number of completed months of employment divided by 12 for a year that is not completed.

The maximum amount of severance pay required to be paid under the ESA is 26 weeks.

Calculating Severance Pay

A special method of calculating severance pay is used for employees who are paid on a basis other than time worked.

When to Pay Severance Pay

An employee must receive severance pay either seven days after the employee's employment is severed or on what would have been the employee's next regular pay day, whichever is later.

However, an employer may pay severance pay in installments with the written agreement of the employee or the approval of the Director of Employment Standards, Ministry of Labour. An installment plan cannot be for more than three years. If an employer fails to make a scheduled payment, all of the employee's severance pay becomes due immediately.

Exemptions from Severance Pay

Many of these exemptions are complex. Please contact the Employment Standards Information Centre, 1-800-531-5551, if you need help with these exemptions. Please also refer to the Special Rule Tool.

An employee is not entitled to severance pay if he or she:

• has refused an offer of "reasonable alternative employment" with the employer;
• has refused "reasonable alternative employment" that is available to the employee through a seniority system;
• is severed and retires on a full pension (not including Canada Pension Plan benefits);
• has his or her employment severed because of a strike, as long as the employer can show that the economic effects of the strike caused the closing of part or all of the business;
• is employed in construction, including employees who are working off-site and who are commonly associated in work or collective bargaining with employees who work at the construction site;
• is employed in the on-site maintenance of buildings, structures, roads, sewers, pipelines, mains, tunnels or other works;
• was employed to provide professional services, personal support services or homemaking services as defined in the Home Care and Community Services Act, 1994 for an employer who had a contract to provide those services with a community care access corporation within the meaning of the Community Care Access Corporations Act, 2001, if the employee's arrangement with the employer allowed the employee to elect to work or not to work when requested to do so by the employer and the employee had his or her employment severed before October 1, 2012;
• is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and was not condoned by the employer; or
• has lost his or her employment because the contract of employment is impossible to perform or has been frustrated by an unexpected or unforeseen event or circumstance. This does not include bankruptcy or insolvency or when the contract is frustrated or impossible to perform as the result of an injury or illness suffered by an employee.

See also: Severance Tool

Recall Rights

A "recall right" is the right of an employee on layoff to be called back to work by his or her employer under a term or condition of employment. If an employee is entitled to both termination pay--because of a layoff of 35 weeks or more--and severance pay, he or she must make the same choice for both. Please refer to "Recall Rights" in the "Termination of Employment" chapter.

Wrongful Dismissal

The rules under the ESA about termination and severance of employment are minimum requirements. An employee may choose instead to sue an employer in a court of law for "wrongful dismissal." An employee cannot sue an employer for wrongful dismissal and file a claim for termination pay or severance pay with the ministry for the same termination or severance of employment. The employee must choose one or the other and may wish to obtain legal advice concerning their rights.

Greater Right to Termination Notice, Pay in Lieu, and Severance Pay

The ESA provides minimum standards only. Some employees may have rights under the common law or other legislation that give them greater rights relating to notice of termination (or termination pay) and severance pay than the ESA. Employers and employees may wish to obtain legal advice concerning their rights.

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