If nothing else, termination is a wake-up call.
However you refer to it—getting laid-off, let go, fired, shown the door, given the boot—suddenly being forced to leave reminds you that you really [idolized/loathed/respected] your boss, or how you [pitied/took for granted/adored] your colleagues, and most of all that in the end you really did [love/detest/find deep meaning in/connected your sense of self with] the work you do, I mean did.
Likely it’s a messy combination of the above with a dash or two or self-doubt. And despite if you feel it was justified or not, the unsolicited end of a job acts as a real-life and real-consequence test of how well you understand your employment rights, your professional relationships, and your sense of worth. At least that was my experience when my job of 8 years suddenly, shockingly, and painfully came to an end in 2019.
Here is what I learned.
First and foremost, as you hopefully know, the Employment Standards Act, 2000 (ESA) provides the minimum standards for MOST employees working in Ontario. I say “most” because, like all policies, there are exceptions and you’ll see MOST pop up a few times. But for the vast majority, the ESA outlines the absolute minimum your employer owes you, and you cannot sign these rights away. “Pshh!”, you say. “Everyone knows that!”, you say. I believed I was informed as well. I had Googled. I had asked questions. Yet I was so misinformed about so much.
This would be the perfect time to interject with the disclaimer that I am not a lawyer and while this information should help get you thinking about your rights, I repeat I am not a lawyer. So you'll need to do your own homework to dig deeper and consult whomever it is you feel is worthy of your ear and trust.
If you’re still reading, “Then what does the ESA cover?”, you might ask with increasing interest and some trepidation. A lot. Hundreds of pages. Which is why we’re only going to focus on three broad areas:
What is a living wage?
Despite the best efforts of groups like Fight for $15 and Fairness, the minimum wage for MOST employees remains $14/hour in Ontario (minimum wage is the legal minimum hourly wage an employer can pay a worker, while living wage is the minimum hourly wage needed to afford the cost of living in their community). This is before taxes, though likely if you’re earning that wage you’ll receive tax credits eliminating the need to pay income tax (but income tax is a topic for another time of light reading). Cheque out this guide if you happen to be a Wilderness or Hunting & Fishing Guide, a Homeworker, or a Liquor Server as you do not fall under the same standard as your life is way more interesting.
Fun fact: if you’re a student working under 28 hours a week then the policy-makers have determined that you deserve less money for potentially the same work and your legal minimum wage is $13.15. Luckily you’ll outgrow this inequity at 18 or when school’s out or when you rise up and advocate for change. Ball’s in your court.
For those making commission, you’re still covered by this minimum wage standard, meaning that the amount either in combination salary + commission or if you’re paid commission alone, must equal or be higher than $14.00/hour. Though again, if you’re a student, dock $0.85/hour out of spite for your youth.
What the heck is time and a half?
There are very clear and very specific rules for how much you can legally be asked to work in a day or a week. And the numbers are shockingly high. So go ahead and guess if you don’t know. 8 hours/day? Correct. 40 hours/week? Oh no. 45 hours/week? Nope, still higher. The number is
Daily limit
The maximum number of hours MOST employees can be required to work is 8 hours/day. For those with a different “established regular workday”, it’s more complicated and beyond what I learned.
Weekly limit
The maximum number of hours MOST employees can be required to work is 48 hours/week.
“But hold up….”, you say as you think about it for a second. “Most work weeks are 5 days and the daily max is 8 hours/day, so how the heck does 5 x 8 =48?!” And I would commend you on your critical thinking and mental math. And then tell you that even the 48 hour/week can be increased.
Here’s the thing: both the daily and weekly maximums can be exceeded by an electronic or written agreement between the employee and the employer. So standards be damned! They can still ask you to work even more and sure you can say no, but that’s not always so easy, especially when an employer can terminate you with no cause at any time. Good news though (maybe) is that even with an agreement, an employer is required to pay overtime pay where overtime hours are worked. But the way I understand it, for those working a 35-40 hour week that’s still up to 13 hours that you can be requested to work with no additional pay.
“For most employees, whether they work full-time, part-time, are students, temporary help agency assignment employees, or casual workers, overtime begins after they have worked 44 hours in a work week. Their hours after 44 must be paid at the overtime pay rate.”
Government of Ontario, Overtime Pay
Now picture this: you’re returning to work after parental leave when the daycare you had secured before you even became a parent falls through. After the swearing and panic you calmly make a plan that sees various family members covering different days of the week. But this plan only works if, instead of taking the 35 vacation days you had saved up in a lump sum at the start of your return, you return to work 2 months earlier than you had planned and take all Mondays as vacation days to care for your child. Perfect, right? Maybe, if I hadn’t worked 30 – 40 hours each week anyway, instead of the 28 hours I was being paid to work. And even that might have been fine and come out in the wash in the years ahead, except that two weeks before my 1-year-return-to-workaversary I was given notice of termination.
That’s when I learned that all those hours extra each week did not legally count as overtime. You see, here’s the funny thing: vacation days, and thereby a reduced work week (35 hours/week down to 28 hours/week), is not taken into account when calculating overtime. Overtime only considers how much you work. Period. Meaning, of the weeks and weeks of extra unpaid work I had done, only two weeks where I worked over 44 hours/week, did I have grounds to claim overtime.
The major lessons learned for me were:
- I would have been much better off figuring out some other way of having my child cared for on Mondays and taken my nearly 2 months of vacation all at once and/or in weekly intervals
- If a different childcare solution wasn’t possible, I should never have worked the long hours, evenings, and weekends thinking and hoping that things would just work out eventually. I was volunteering my time. In fact, over the almost-year, I had donated months of my time to my employer with no opportunity for remuneration.
And maybe that’s what you want to do, but do so knowingly. I believed in my projects and what I was trying to do but had I really understood what I was giving up, I would have acted differently. I could have volunteered those hours in my community, taken more time for myself, spent more time with family, or even gotten a part-time job that would have paid me for that time, my time.
It was an expensive lesson, but one I’m glad I learned.
But you got a package right?!
Media is filled with stories of “outrageous” severance packages for terminated CEOs or public servants or some other already very well-paid person. While the figures that pop up in your newsfeed may be in the millions and outside of anything you’d rationally expect, this focus on “the package” has normalized receiving severance as a right. And it’s not. At least not for everyone.
Termination Pay
We need to back up a bit. We typically think of termination as something that happens immediately. However, employers can provide working notice, meaning that they can give you advance warning of how much longer you will be employed. This is rare given that if you’re being terminated, they usually don’t want to see you at the office the next day. In that case, they can terminate you effective immediately, so with no notice, but they still need to pay your salary, any benefits, and vacation for a minimum number of weeks.
Confused? Let’s work in numbers and assume your termination is effective immediately.
If you have worked at your place of employment for over 3 months, MOST people are entitled to received 1 week/year worked in termination notice up to 8 years (i.e. 8 weeks) and pro-rated for any incomplete year. So if you’ve been somewhere for 5 years and are terminated, your employer needs to pay you for another 5 weeks, continue any benefits (such as RRSP contributions, health plans, etc), and will need to pay you for vacation accrued during those weeks. If you’ve been employed for 10 years, you are entitled to 8 weeks notice (as that’s the legal cap).
There’s a handy chart to explain all of this but it’s literally 1 year employment = 1 week notice required for up to and including 8 years. Sometimes you just need a chart for your brain to follow.
Severance Pay
Does your employer pay more than $2.5 million in wages annually? Are at least 50 people being terminated in a 4 week period? If you said no to both, you are NOT entitled to severance. This makes up a huge number of employers so severance is definitely not the norm.
If you are one of the lucky ones who answered yes to either of the above questions, or has severance written into your employment agreement, the standards are complicated. For the most part, it’s 1 week/year (this is on top of the 1 week/year termination pay if applicable) up to a max of 26 weeks. The Ministry of Labour has a Severance Pay Calculator that can better identify what you are entitled to receive.
Key take-away from this section: termination pay is not the same as severance and unless your employer pays staff more than $2.5 million/year or it’s a mass layout, you likely aren’t getting a package.
Remember though that ESA is the minimum standard. Check your employment agreement as it may promise you more (but it cannot promise you less).
Shouldn’t I know this BEFORE I’m hired?
Definitely. Having this knowledge and understanding before you’re terminated ensures you aren’t shocked by what you receive (or at the very least, there are fewer nasty surprises). But having this information BEFORE YOU EVEN SIGN YOU EMPLOYMENT AGREEMENT is so, so, so much better. Because then you know what you’re getting into, as opposed to just what will happen if you’re forced out, and you still have the opportunity to speak up, ask questions, and demand more.
From now on I’ll be taking any new employment agreement to my employment lawyer to ensure I know exactly what it means and I can make informed decisions based on that knowledge. And for the most part, employers except you to seek advice and take time to review the offer. They are looking out for their best interest and you need to ensure you’re looking out for you and your self worth.
Do Better. Be Better. 