We have stated in former blogs that an employer cannot simply “layoff” an employee (i.e. put the employee’s work on hold) without it being considered a form of constructive dismissal, which would entitle the employee to pay in lieu of notice at common law. An employer can only layoff an employee usually if an employer has an express or implied contractual right to do so. If the employer has such a right, it can only exercise it within the legislated parameters of the Employment Standards Act, 2000 (“ESA”).
Sometimes an employer will calculate vacation pay based only on the employee’s salary rather than including the salary and any bonus or commission payments. This is important for the employee as sometimes bonuses and commission payments can make up a substantial part of the employee’s income. However, some jobs may be exempt from paying vacation with pay. Ontario’s Employment Standards Act, 2000 (“ESA”) sets out provisions with respect to how and in what amounts an employee is entitled to vacation pay.
Many factors can increase an employee’s reasonable notice period upon dismissal from their job. For instance, factors such as age, nature of the job, how long they worked there and what experience, training or qualifications they may have. However, the list as set out above is not the end of the story. There are additional factors that can come into play. One novel factor may be the COVID-19 pandemic. Another factor that sometimes people do not readily think about when assessing the length of a reasonable notice period is pregnancy.
Employers in Ontario cannot discriminate against employees because of age. This is because age is a protected ground under the Human Rights Code, 1990 (“Code”) and if an employer acts in a way that infringes the Code it could face serious legal consequences as a result. Both the young and old may experience age-related discrimination.