An Ontario Arbitrator recently affirmed an employer’s decision to provide “working notice” of termination to two inactive employees. This appears to be the first decision since the Employment Standards Act, 2000 was enacted that squarely addresses whether an employer can provide working notice in such a circumstance.
The facts of this case are simple. When two unionized employees became permanently disabled, the employer took the position that their employment had been frustrated and took steps to terminate them. While the employees were paid out their severance pay entitlements under the Employment Standards Act, the employer provided them with “working notice” rather than paying them wages in lieu of notice. The union challenged this decision, asserting that although they were unable to work, the employees were entitled to be paid during the statutory notice period.
In dismissing the grievance, the Arbitrator held that an entitlement to statutory termination pay during the notice period is premised on the employee performing actual work, unless the contract of employment says otherwise. As the grievors did not work during the notice period, the employer was not obligated to pay the grievors’ wages over this period.
While the law on this issue remains unsettled, this decision is a positive development in favour of employers looking to terminate employees who are unable to work over the notice period. That being said, employers must still be sure to comply with any severance pay obligations, as well as the duty to accommodate under the Human Rights Code.
If you have any questions about an employer’s statutory requirements on termination, or any other questions relating to workplace law, please do not hesitate to contact a Mathews Dinsdale lawyer.
For more information on new developments in Workplace Law, please refer to our website at:
Click here for downloadable version