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 losses (such as loss of seniority) that occur when a long-term employee loses his or her job.
Severance pay is not the same as termination pay, which is given in place of the required notice of termination of employment.
A person's employment is "severed" when their employer:
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 do not have to be consecutive.
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.
Heather has worked for seven years, and is entitled to seven weeks' notice of termination under the ESA. Heather's employer gives her 10 weeks' notice. Heather must give her employer at least two weeks' written notice of her resignation. As long as Heather's resignation takes effect during the statutory notice period, in this case the last seven weeks of the 10-week notice period, she continues to be entitled to severance pay.
An employee qualifies for severance pay if his or her employment is severed and he or she:
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 maximum amount of severance pay required to be paid under the ESA is 26 weeks.
Susan regularly works 40 hours a week and is paid $15.00 an hour. Her employer has a payroll of more than $2.5 million. Her employer gives Susan seven weeks' notice of termination, and Susan works for the notice period. At the end of the notice period, Susan's employment is severed. On that date, Susan has been employed for seven years, nine months and two weeks.
Here's how to calculate Susan's severance pay entitlement.
Result: Susan is entitled to $4,650.00 in severance pay.
A special method of calculating severance pay is used for employees who are paid on a basis other than time worked.
Kwesi works as a commission salesperson at his employer’s high-tech retail store. He is paid commissions on sales made and not on the basis of time worked.
Kwesi's employer decides to downsize and Kwesi is given eight weeks' written notice of termination of employment. He works the notice period and his employment is severed. On the date his employment is severed, he has been employed for nine years, six months and three weeks.
Kwesi's employer has a payroll of more than $2.5 million. In the last 12 weeks of his employment, Kwesi has received $7,723.00.
To calculate Kwesi's severance pay entitlement.
Calculate Kwesi's "regular wages for a regular work week"-the average of the regular wages he received in the weeks he worked during his last 12 weeks of employment.
$7,723.00 ÷ 12 = $643.58
Number of completed years = 9
Divide the number of complete months Kwesi was employed in the incomplete year by 12
Kwesi worked 6 complete months ÷ 12 = 0.5
Add the number arrived at in Step 2 (9) and the number arrived at in Step 3 (0.5) 9 + 0.5 = 9.5
Multiply Kwesi's regular wages for a regular work week ($643.58) by the number arrived at in Step 4 (9.5) $643.58 × 9.5 = $6,114.01.
Result: Kwesi is entitled to $6,114.01 in 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.
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, available at Ontario.ca/ESAtools.
An employee is not entitled to severance pay if he or she:
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.
The rules under the ESA about termination and severance of employment are minimum requirements. Some employees may have rights under the common law or other legislation that give them greater rights than notice of termination (or termination pay) and severance pay under the ESA; because such rights generally cannot be enforced under the ESA, some employees may choose to sue an employer in a court for “wrongful dismissal” or pursue other options. Employees should be aware that they 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; an employee must choose one or the other. Employees may wish to obtain legal advice concerning their rights.
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