Use the Tool: Getting Started
Who would find this tool useful
- Employers trying to determine whether an employee is entitled to termination notice or pay.
- Employees trying to determine whether they are entitled to receive termination notice or pay.
Who SHOULD NOT use this tool
What you need to use this tool:
- A recent pay stub recording the earnings of the employee for whom the tool is being used.
- Records that include information on the length of this employee's employment.
- Users are encouraged to consult the Termination of Employment Chapter of the ESA Guide while using this tool.
Step 1: Determining whether there has been a termination.
Definition: Employment is terminated if the employer:
- dismisses or stops employing the employee, including where an employee is no longer employed due to the bankruptcy or insolvency of the employer;
- constructively dismisses an employee and the employee resigns, in response, within a reasonable time;
- lays the employee off for a period that is longer than a temporary layoff (see ESA Guide).
Situations may occur where an employee provides the employer with resignation notice and the employer then terminates the employee's employment effective immediately. The employer, in this situation, effectively turns the resignation into a termination. A qualified employee would be entitled to termination pay based on
- either the amount of termination notice he or she would have received under Section 57 or 58, or
- the amount of time remaining in the employee's resignation notice
whichever is shorter.
Note: For information on temporary lay-offs, see the ESA Guide.
Based on the response provided, the employee's employment has not been terminated within the meaning of the Employment Standards Act, 2000 (
ESA) and is
not entitled to termination notice or pay. You may choose to modify your response above or you may find the following resources useful to you:
Step 2: Identifying whether the employee is entitled to termination notice or pay.
Clarification:
Include all time spent in the employer's employ, whether active or not, including temporary lay-offs and leaves of absence, when determining whether a person has been continuously employed.
Example: An employee was hired Jan. 1, 2010, and worked only one month before being laid off. The layoff goes on for more than 13 weeks and his employment is deemed terminated. For the purpose of determining whether the employee has three months of continuous employment, the ESA requires that an employer count all employment, including active and inactive employment. Therefore, this employee would meet the eligibility requirement of three months of continuous employment.
Continuous employment means there has been no break in the employment relationship. For example, the employee has not resigned or been dismissed.
If the employee does not have three months of continuous employment he or she does not qualify for termination notice or pay under the ESA.
It is important to note that if a sale of business occurred in the past and the employee continued to be employed with the new owner, the time with the previous owner may count as if it were employment with that new owner. The sale may even pre-date the current employer's purchase of the business. Please refer to the Continuity of Employment in the Guide, as employment time with the previous owner(s) of the business may be included in determining length of employment.
If the employee is employed by a building service provider, and there was a change in providers in the past and the employee stayed on with the new provider, an employer may also need to count the time spent with the previous provider(s) when determining the employee's length of employment. More information on Building Service Providers
Based on the response provided,
the employee does not have three months of continuous employment, and does not qualify for termination notice or pay. You may find the following resources useful to you:
Step 3: Determining whether the "mass termination" rules are applicable.
Definition:
An establishment, with respect to an employer, means a location where the employer carries on business. When the employer carries on business at more than one location, separate locations are considered one establishment if:
- the separate locations are located within the same municipality, or
- one or more employees at a location have seniority rights that extend to the other location under a written employment contract whereby the employee or employees may displace ("bump") another employee of the same employer.
Mass Termination Notice from O. Reg 288 s. 3
The amount of notice required is based on the number of employees whose employment is being terminated at the establishment within the same four-week period.
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
Number of Employees Whose
Employment is Being Terminated |
Notice Required (Section 58 of the ESA and O. Reg. 288 s. 3) |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
Important: Mass terminations are subject to many rules. It's important that you understand these rules.
The amount of notice employees must receive in a mass termination is not based on an individual employee's period of employment, but on the number of employees whose employment is being terminated at the employer's establishment within the same four-week period.
Exception to the Mass-Termination Rules
The mass-termination rules do not apply if:
- The number of employees whose employment is being terminated represents not more than 10 per cent of the employees who have been employed for at least three months at the establishment, and
- None of the terminations is caused by the permanent discontinuance of all or part of the employer's business at the establishment.
To determine if an obligation to provide notice of termination or termination pay (pay in lieu) exists, continue to Step 5. If you are sure notice of termination or pay in lieu is owing, see the Termination Pay Calculator.
If an employee is laid off and you need to determine when the lay-off becomes a termination, please see the ESA Guide.
Go to Step 4
A Form 1 must be filed in order for notice to be considered given. If the employee has not already been terminated, Form 1 must be completed. Once that has been submitted to the Director of Employment Standards continue to Step 4.
If the employee has been terminated and no Form 1 was submitted to the Director of Employment Standards, see the calculator to determine the amount owing.
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
| Number of Employees Whose Employment is Being Terminated |
Notice Required (Section 58 of the ESA and O. Reg. 288 s. 3) |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
Go to Step 4
Step 4: Employer exemptions to provide termination notice or pay.
Do any of the following exemptions apply?
Please Note: If you answer "Yes" to any of the following questions, the employee is not entitled to notice of termination or termination pay under the ESA.
The employee:
- is guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer. Note: "wilful" includes when an employee intended the resulting consequence or where he or she acted recklessly and knew or ought to have known, the effects that his or her conduct would or might have. Acts or omissions that are accidental or involuntary are generally not considered wilful.
- 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 terminated before October 1, 2012.
- was hired for a specific term (i.e., a specified length of time) or to do a specific task. However, such an employee will be entitled to notice of termination or termination pay if:
- the employment ends before the term expires or the task is completed; or
- the term expires or the task is not completed more than 12 months after the employment started; or
- the employment continues for three months or more after the term expires or the task is completed.
- is employed in construction. (This includes employees who are doing off-site work in whole or in part who are commonly associated in work or collective bargaining with employees who work at the construction site.)
- builds, alters or repairs certain types of ships as set out in O. Reg 288/01, S. 2(1), paragraph 12
- has his or her employment terminated when he or she reaches the age of retirement in accordance with the employer's established practice, but only if the termination would not contravene the Human Rights Code.
- has refused an offer of reasonable alternative employment with the employer.
- has refused to exercise his or her right to another position that is available under a seniority system.
- is on a temporary lay-off.
- does not return to work within a reasonable time after being recalled to work from a temporary layoff.
- has his or her employment terminated during or as a result of a strike or lockout at the workplace.
- has lost his or her employment because his or her contract of employment has become impossible to perform or has been frustrated unless the impossibility or frustration is the result of an illness or injury suffered by the employee
Based on the response provided the employee is not entitled to termination notice or pay under the
ESA. It is important to note that exemptions are meant to be interpreted narrowly. You may wish to seek legal advice before relying on any of the above exemptions. These resources may also be helpful:
Step 5: Calculating the period of employment.
The amount of notice an employee is entitled to is based on his or her "period of employment", except in cases involving mass termination as described in Step 3. Period of employment begins when employment begins and ends when termination notice is given. If no notice is given, the period of employment ends on the date of termination.
When an employee has two separate periods of employment, they are added together if they are separated by 13 weeks or less.
When an employee's employment is terminated as a result of a lay-off exceeding the length of a temporary lay-off, time spent on the lay-off after the deemed termination date will not count towards the employee's period of employment.
The deemed termination date is the first day of the lay-off.
Generally, the first day of lay-off will be the first regularly scheduled day of work after the employee was notified of the lay-off on which the employee does not work. For example, if an employee regularly works Monday to Friday and was notified on Friday that he or she would be laid off and to not report to work on the following Monday, the first day of lay-off will be considered to be the following Monday; the employee is not considered to be laid off until such time as the employee would otherwise have been at work, which would have been the next scheduled work day.
Statutory Notice Requirements
| Period of Employment |
Notice Required
(Section 57 of the ESA). |
| Less than 1 Year |
1 week |
| 1 year but less than 3 years |
2 weeks |
| 3 years but less than 4 years |
3 weeks |
| 4 years but less than 5 years |
4 weeks |
| 5 years but less than 6 years |
5 weeks |
| 6 years but less than 7 years |
6 weeks |
| 7 years but less than 8 years |
7 weeks |
| 8 years or more |
8 weeks |
Need an example?
Example:
Mary was employed from January 1 2008 to May 31 2008 (5 months) and then quit. On September 1 2008 (more than 13 weeks later), Mary was re-hired and then quit (4 months later) on December 31st 2008. On February 1st, 2009 the employer hired her again and terminated her employment 3 months later on April 30th 2009.
When determining the employee's period of employment, it is easiest to start with the most recent period of employment and work backwards. In the example above you would add together the periods of Feb 1/09 to April 30/09 and Sept 1/08 to December 31/09 because the gap between them is not more than 13 weeks. The periods of Jan 1/08 to May 31/08 and Sept 1/08 to Dec31/09 are not added together because there was a gap between them of more than 13 weeks. The period of employment is therefore 7 months.
Note: When an employee's employment is terminated as a result of a lay-off that lasts longer than the length of a “temporary lay-off”, time spent on the lay-off after the deemed termination date will not count towards the employee's period of employment. The deemed termination date is the first day of the lay-off. Generally, the first day of the lay-off will be the first regularly scheduled day of work after the employee was notified of the lay-off on which the employee does not work.
Go to Step 6
Based on the response provided, the employer has complied with the
ESA's notice requirements. Therefore, the employee is not entitled to termination pay under the
ESA. The employer is required to ensure that the employee receives any unpaid wages and accumulated vacation pay within seven days after their employment ends or on the day that would have been the employee's next pay day, whichever is later. Also, note that vacation pay continues to accumulate on any wages earned during the statutory notice period. To determine if there is an entitlement to severance pay, see the
Severance Tool.
Use the Termination Pay Calculator
Based on the response provided the employee is not entitled to termination notice or pay under the
ESA. It is important to note that exemptions are meant to be interpreted narrowly; you may wish to seek legal advice before relying on any of the above exemptions. You may find the following resources useful to you:
Under common law, there may also be a right providing an entitlement to greater notice of termination or termination pay.
Step 6: Determining if notice requirements have been met.
Under the
ESA, an employer can provide termination notice or termination pay. Termination notice is meant to give an employee advance warning that a termination will occur. There are also certain requirements that need to be met during the statutory notice period. The following questions will help determine if the notice requirements, as set out in the
ESA, have been met.
Was termination notice provided?
Generally, termination notice must be in writing and given to an employee individually. However in some situations where bumping rights based on seniority are involved, the requirement to give notice can be fulfilled by posting the notice in an obvious place where it is likely to be seen by affected employees. (Certain other conditions must also be met).
Not sure?
The termination notice must specify the date of termination.
Note: In rare cases, oral notice of termination may be acceptable. It would have to meet two conditions:
- it would have to specify the date of termination and
- it would have to provide a greater benefit to the employee than notice in accordance with the ESA would provide.
Example: an employee entitled to two weeks' written notice under the Act is given eight weeks' oral notice and is also allowed to take time off work during the notice period to look for new employment.
If all the following conditions are present, notice of “indefinite layoff” will count as notice of termination:
- the employer lays off or will be laying off an employee for a period that is (or that may be) longer than a temporary lay-off;
- the employee is covered by a collective agreement;
- giving notice of “termination” instead of lay-off would put the employer in breach of the collective agreement; and
- the employer provides written notice of the indefinite lay-off.
Generally, notice of termination must be in writing and given to the employee either:
- personally, by leaving a copy of the document with the employee
- by verifiable mail to the employee's last known address
- by fax or email if the employee is able to receive it that way
- by a courier service
- leaving it in a sealed envelope addressed to the employee, with a person who appears to be at least 16 years of age, at the employee's last known address
When notice is considered effective
If notice is served to the individual either personally or in a sealed envelope to an individual who appears to be at least 16 years of age at the employee’s last known address, notice is effective on the day it was given.
If notice is served by fax or email it is effective on the day it was sent unless the notice was sent after 5pm, on a Saturday, Sunday, or public holiday, in which case it would be effective on the next business day.
If notice is served by verifiable mail it is effective 5 days after the document is mailed.
If notice is served by a courier it is considered effective 2 days after the courier takes the document.
Except in cases of personal service, if the person establishes that the service was not effective due to an absence, accident, illness or cause beyond the person’s control, the above timelines will not apply.
Periods of Statutory Notice Required
To determine an employee's period of employment see Step 5 of this tool.
The requirements set out in the charts below are statutory minimums only and do not reflect any entitlement the employee may have under the common law.
Statutory Notice Requirements
| Period of Employment |
Notice Required
(Section 57 of the ESA). |
| Less than 1 Year |
1 week |
| 1 year but less than 3 years |
2 weeks |
| 3 years but less than 4 years |
3 weeks |
| 4 years but less than 5 years |
4 weeks |
| 5 years but less than 6 years |
5 weeks |
| 6 years but less than 7 years |
6 weeks |
| 7 years but less than 8 years |
7 weeks |
| 8 years or more |
8 weeks |
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
| Number of Employees Whose Employment is Being Terminated |
Notice Required
Section 58 of the ESA and O. Reg 288 s.3). |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
The statutory notice period is the period of termination notice that is required under the ESA.
When more notice than what is required by the ESA is given, it is the last part of the notice (the part closest to the termination date) that is considered to be the statutory notice period. For example, if an employee is entitled to four weeks of notice under the ESA and the employer provides eight weeks, it is the last four weeks of the eight-week notice that is the statutory notice period.
Wage rate is the basis on which the employee is paid (e.g., so much per hour, commissions, base plus commissions, piecework).
Regular Wages
ss. 1(1) of the ESA defines regular wages as wages other than overtime pay, vacation pay, public holiday pay, premium pay, termination pay and severance pay and certain contractual entitlements. For information on what those contractual entitlements are see ss. 5(2) of the ESA.
Regular Work Week
A regular work week for an employee who usually works the same number of hours every week is a week of that many hours, not including overtime hours.
Some employees do not work the same number of hours every week or they are paid on a basis other than time (commissions, commission plus base wage, piecework, etc.).
For these employees, the "regular wages" for a "regular work week are:
- the average amount of the regular wages earned by the employee in the weeks in which the employee worked in the 12 weeks immediately before the date of termination.
- or if notice was provided, 12 weeks before the date notice was given. Where an employee has been terminated as a result of a lay-off exceeding the length of a temporary lay-off, the calculation is based on the 12 weeks immediately before the first day of lay-off (which is deemed to be the termination date).
To calculate the average amount of wages earned in the 12 weeks before either the date notice was given or the date of termination, it is important to note that you are looking at blocks of 12 weeks. It is program policy that if in the 12 weeks prior there were no wages earned, you would move to the next preceding block of 12 weeks, and so on, until you found a block of 12 weeks where there were wages earned.
Need an example?
Example:
Tom's employment was terminated on May 1, 2009, after returning from an educational leave of 12 weeks. He was paid by piecework and did not earn the same amount of wages in each week. Because Tom was on an educational leave in the 12 weeks before the date of termination, he did not work any of the 12 weeks and therefore had no wages earned during that time.
- 0-12 weeks before termination – no weeks worked
- 12-24 weeks before termination – seven weeks worked
In the 12-24 week period prior to the date of termination, Tom worked for seven weeks and earned $5000. To calculate Tom's regular wages for a regular work week you divide $5000 by the seven weeks worked.
$5000 / 7
Regular wage per week = $714.29
Based on the response, termination notice has not been given. Use the calculator to determine the amount of termination pay owing. You may choose to modify your response above or you may find the following resources useful:
Continue to Termination Pay Calculator
You have answered "No" to this question. In some cases, an employer who is required to give an employee notice of termination does not have to give the notice to the employee individually in accordance with
Section 95 of the
ESA , but can instead post a notice in the workplace. This can be done only if the employee in question is covered by a seniority system under which one employee can "bump" another on the basis of seniority. (Certain other conditions must also be met.) As you have indicated that the employee is not covered by such a seniority system, the notice requirements set out in the
ESA are not being followed. You may choose to modify your response above or you may find the following resources useful:
Statutory Notice Requirements
| Period of Employment |
Notice Required
(Section 57 of the ESA). |
| Less than 1 Year |
1 week |
| 1 year but less than 3 years |
2 weeks |
| 3 years but less than 4 years |
3 weeks |
| 4 years but less than 5 years |
4 weeks |
| 5 years but less than 6 years |
5 weeks |
| 6 years but less than 7 years |
6 weeks |
| 7 years but less than 8 years |
7 weeks |
| 8 years or more |
8 weeks |
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
Number of Employees Whose
Employment is Being Terminated |
Notice Required (Section 58 of the ESA and O. Reg. 288 s. 3) |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
Continue to Termination Pay Calculator
Based on the response provided, the employee's employment was terminated but not as a result of being bumped. If individual notice of termination was not provided, the employee will be entitled to termination pay. You may choose to modify your response above or you may find the following resources useful:
Statutory Notice Requirements
| Period of Employment |
Notice Required
(Section 57 of the ESA). |
| Less than 1 Year |
1 week |
| 1 year but less than 3 years |
2 weeks |
| 3 years but less than 4 years |
3 weeks |
| 4 years but less than 5 years |
4 weeks |
| 5 years but less than 6 years |
5 weeks |
| 6 years but less than 7 years |
6 weeks |
| 7 years but less than 8 years |
7 weeks |
| 8 years or more |
8 weeks |
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
Number of Employees Whose
Employment is Being Terminated |
Notice Required (Section 58 of the ESA and O. Reg. 288 s. 3) |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
Continue to Termination Pay Calculator
Based on response provided the employer is not complying with the
ESA's notice requirements. Please refer to the termination pay calculator to determine the amount of termination pay that is owed.
Statutory Notice Requirements
| Period of Employment |
Notice Required
(Section 57 of the ESA). |
| Less than 1 Year |
1 week |
| 1 year but less than 3 years |
2 weeks |
| 3 years but less than 4 years |
3 weeks |
| 4 years but less than 5 years |
4 weeks |
| 5 years but less than 6 years |
5 weeks |
| 6 years but less than 7 years |
6 weeks |
| 7 years but less than 8 years |
7 weeks |
| 8 years or more |
8 weeks |
For terminations occurring as a result of a mass termination, follow this chart:
Mass Termination Notice
Number of Employees Whose
Employment is Being Terminated |
Notice Required (Section 58 of the ESA and O. Reg. 288 s. 3) |
| 50 to 199 employees |
8 weeks |
| 200 to 499 employees |
12 weeks |
| 500 or more employees |
16 weeks |
Continue to Termination Pay Calculator
You have answered no to this question. Based on the response provided, the employer has not complied with the
ESA's notice requirements and must provide termination pay. You may choose to modify your response above or you may find the following resources useful:
Continue to Termination Pay Calculator
Based on the response provided, the employer has not complied with the notice requirements as set out in the
ESA and must provide termination pay. You may choose to modify your response above or you may find the following resources useful:
Continue to Termination Pay Calculator
If the employee received less than his or her regular wages for a regular work week, the notice requirements, as set out in the
ESA, have not been met. Therefore, the employer will need to provide termination pay. You may choose to modify your response above or you may find the following resources useful:
Continue to Termination Pay Calculator
Based on the response provided, the employer has complied with the
ESA's notice requirements. Therefore, the employee is not entitled to termination pay under the
ESA. The employer is required to ensure that the employee receives any unpaid wages and accumulated vacation pay within seven days after their employment ends or on the day that would have been the employee's next pay day, whichever is later. Also, note that vacation pay continues to accumulate on any wages earned during the statutory notice period. To determine if there is an entitlement to severance pay, see the
Severance Tool.
Although the employer does not need to provide termination pay under the ESA, the Act requires that the employer maintain the employee's benefits throughout the statutory notice period. If benefits are not maintained, an employment standards officer could issue an order to pay for the amount of the employer premiums that would be required to maintain the benefits. Failure to maintain the benefits could also lead to a compliance order or notice of contravention being issued or to prosecution. An employment standards officer could not issue an order for the value of the benefits that should have been maintained, but this does not necessarily mean that an employee (or his or her estate) could not pursue the matter through a civil action.
The employer is required to ensure that the employee receives any unpaid wages and accumulated vacation pay within seven days after their employment ends or on the day that would have been the employee's next pay day, whichever is later. Also, note that vacation pay continues to accumulate on any wages earned during the statutory notice period. To determine if there is an entitlement to severance pay, see the Severance Tool.
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