The COVID-19 pandemic has created situations where many employees no longer work out of a traditional office space but out of their homes or other places not located within the employer’s physical workplace. This change is probably here to stay with a large number of workers in the Canadian workforce to be permanently classified as “remote workers.”
The Ontario government has indicated that they want to tighten Ontario’s mass termination rules with respect to notice of termination to ensure that remote workers are included. Under the Employment Standards Act, 2000 (“ESA”), there are specific rules that apply when an employee is terminated as part of a mass termination. A mass termination occurs under the ESA when 50 or more employees are terminated from an employer’s “establishment” within a four-week period. In the case of a mass termination, an employee could be entitled to 8, 12 or 16 weeks notice of termination, depending on the number of employees who were terminated. An “establishment” is defined under the ESA to be a location at which the employer carries on business. The Ontario government wants to widen the definition of what is an establishment under the ESA to include remote workers and other employees who work from home so that they also may partake in the enhanced notice of termination provisions under the ESA for mass terminations.
These changes are part of a lot of other proposed changes in support of workers that the Ontario government as set out in the Working for Workers Act for 2023. The Working for Workers Act, 2021 and 2022 is already in place. We have written about these other expanded supports for employees in our recent blog entitled Ontario Government is Introducing Legislative Changes to Increase Worker Protections.
We are not sure if this law will change what is already taking place. In any event, this law will ensure that remote workers are included in the above scenarios and, as such, this legislation is probably a positive move on the part of the Ontario government.
However, we want to be clear with our readers that this legislation is probably not the total of what an employee terminated in the above situation is entitled to. This is because these amounts as set out in the ESA are statutory minimum notice periods. To remind our readers, terminated employees are entitled to notice of termination at common law which is typically a greater than what is set out under the ESA. The length of reasonable notice under the common law will be determined by looking at various different factors including age, length of service, position with the employer and the ability to find alternative new employment.
The bottom line is that employees should not just take the amount they will receive under the ESA even if this amount is increased because they were terminated in a mass termination situation or not. They need to speak with an employment lawyer to determine if they are entitled to common law notice as well.