R.R.O. 1990, Reg. 327: TERMINATION OF EMPLOYMENT

Employment Standards Act
Loi sur les normes d’emploi

REGULATION 327

Amended to O. Reg. 288/01

TERMINATION OF EMPLOYMENT

Note: This Regulation was revoked on the day Part XV of the Employment Standards Act, 2000 come into force. This day has been named as September 4, 2001. See: O. Reg. 288/01, ss. 10, 11.

This Regulation is made in English only.

1. For the purposes of section 57 of the Act,

“temporary lay-off” means,

(a) a lay-off of not more than thirteen weeks in any period of twenty consecutive weeks,

(b) a lay-off of more than thirteen weeks where,

(i) the person continues to receive payments from the employer,

(ii) the employer continues to make payments for the benefit of the person laid off under the provisions of a bona fide retirement or pension plan or under a bona fide group or employee insurance plan,

(iii) the person laid off receives supplementary unemployment benefits, or

(iv) the person laid off is entitled to be in receipt of supplementary unemployment benefits but does not receive the same because he or she is employed elsewhere during the lay-off, or

(c) a lay-off of more than thirteen weeks where the employer recalls the person within the time or times fixed by the Director;

“termination of employment” includes a lay-off of a person for a period longer than a temporary lay-off;

“week of lay-off” means a week in which a person receives less than one-half of the amount the person would earn at his or her regular rate in a normal non-overtime work week, but shall not mean a week in which a person,

(a) was not able to work or not available for work,

(b) was subject to disciplinary suspension, or

(c) was not provided with work by the employer by reason of any strike or lock-out occurring at his or her place of employment or elsewhere. R.R.O. 1990, Reg. 327, s. 1; O. Reg. 169/95, s. 1; O. Reg. 382/95, s. 1.

2. Section 57 of the Act does not apply to a person who,

(a) is laid off after refusing an offer by the employer of reasonable alternate work;

(b) is laid off after refusing alternate work made available through a seniority system;

(c) is on lay-off and does not return to work within a reasonable time after being requested to do so by the employer;

(d) is laid off or terminated during or as a result of a strike or lock-out at his or her place of employment;

(e) is employed in the construction, alteration, decoration, repair or demolition of buildings, structures, roads, sewers, water or gas mains, pipelines, tunnels, bridges, canals or other works at the site thereof;

(f) is employed under an arrangement whereby the person may elect to work or not for a temporary period when requested to do so; or

(g) having reached the age of retirement according to the established practice of the employer, has his or her employment terminated. R.R.O. 1990, Reg. 327, s. 2.

3. An employer who is engaged in the building, alteration or repair of a ship or vessel with a gross tonnage of over ten tons designed for or used in commercial navigation is exempt from section 57 of the Act in respect of an employee to whom a bona fide supplementary unemployment benefit fund, plan or arrangement applies that has been agreed upon by the employer and the employee or the employee’s agent if the employee or the agent consents or agrees in writing to such exemption. R.R.O. 1990, Reg. 327, s. 3.

4. Subject to section 5, the notice required to be given by an employer under subsection 57 (2) of the Act shall not be less than,

(a) eight weeks notice if the employment of fifty or more persons and fewer than 200 persons is to be terminated at an establishment;

(b) twelve weeks notice if the employment of 200 or more persons and fewer than 500 persons is to be terminated at an establishment; and

(c) sixteen weeks notice if the employment of 500 or more persons is to be terminated at an establishment. R.R.O. 1990, Reg. 327, s. 4.

5. (1) Where not more than 10 per cent of the persons employed at an establishment, being fifty or more persons, have their employment terminated in any period of four weeks or less, subsection 57 (1) of the Act applies unless the termination is caused by the permanent discontinuance of all or part of the business of the employer at the establishment in which case subsection 57 (2) of the Act applies. R.R.O. 1990, Reg. 327, s. 5 (1).

(2) In determining the number of persons employed at an establishment for the purposes of subsection (1), those persons who have been employed for less than three months shall not be taken into consideration. R.R.O. 1990, Reg. 327, s. 5 (2).

6. A person who has been employed for less than three months shall not be entitled to notice under subsection 57 (2) of the Act. R.R.O. 1990, Reg. 327, s. 6.

7. (1) Where the terms of employment permit a person whose employment is terminated to take another position in the establishment as a result of which some other person loses his or her employment, the employer may post a notice in a conspicuous part of the establishment listing the name, seniority and job classification of the person whose employment is to be terminated in the first instance and setting forth the date of termination. R.R.O. 1990, Reg. 327, s. 7 (1).

(2) The posting of the notice mentioned in subsection (1) shall be notice of termination of employment as of the day of posting to the person losing his or her employment in the circumstances set out in subsection (1). R.R.O. 1990, Reg. 327, s. 7 (2).

(3) Clause 57 (13) (a) of the Act does not apply to a person remaining in the employment of the employer in the circumstances set out in subsection (1). R.R.O. 1990, Reg. 327, s. 7 (3).

8. (1) Notice of termination of employment shall be in writing addressed to each person whose employment is to be terminated and shall be served personally or by registered mail. R.R.O. 1990, Reg. 327, s. 8 (1).

(2) Notice of termination of employment may be made conditional upon the happening of a future event provided that the length of the notice complies with the Act and this Regulation. R.R.O. 1990, Reg. 327, s. 8 (2).

(3) Notice of indefinite lay-off shall be deemed to be notice of termination of employment. R.R.O. 1990, Reg. 327, s. 8 (3).

(4) Where a person who has been laid off is no longer temporarily laid off as defined in this Regulation, the employment of that person shall be deemed to have been terminated upon the first day of the lay-off and the employer shall pay to that person an amount calculated in accordance with subsection 57 (14) of the Act, as though the employment of the person had been terminated forthwith without notice. R.R.O. 1990, Reg. 327, s. 8 (4).

9. (1) Without affecting the date of termination of employment or period of employment, an employee who has been given notice of termination or whose employment has been terminated in accordance with the Act or this Regulation may be given temporary work,

(a) during the thirteen-week period following the date of termination; and

(b) if the Director’s approval is obtained, for a fixed period or periods after the thirteen-week period following the date of termination,

and section 57 of the Act does not apply so as to require a further notice of termination in relation to the temporary work. R.R.O. 1990, Reg. 327, s. 9 (1).

(2) The Director may approve temporary work under clause (1) (b) where he or she is satisfied that,

(a) the request for approval is made in good faith and is reasonable having regard to the nature of the work requirements;

(b) the request is not intended to have and will not have the effect of defeating the intent and purpose of the Act and this Regulation; and

(c) failure to approve the temporary work will result in a loss of employment opportunities,

and may impose such terms and conditions on the approval as he or she considers appropriate. R.R.O. 1990, Reg. 327, s. 9 (2); O. Reg. 691/92, s. 1.

(3) For the purposes of subsection 14 (2), a period of employment includes a period of temporary work mentioned in subsection (1). R.R.O. 1990, Reg. 327, s. 9 (3).

10. The length of notice of termination of employment shall not include any week of vacation unless the person after receiving the notice agrees to take vacation during the period of the notice. R.R.O. 1990, Reg. 327, s. 10.

11. (1) Subject to subsection (2), the employer shall pay to the person given notice of termination of employment the wages to which the person is entitled for work performed during the period of notice, but in no case shall the employer pay to the person for each week during the period of notice an amount less than the amount the person would have received for a normal non-overtime work week at his or her regular rate, whether the person performed work or not. R.R.O. 1990, Reg. 327, s. 11 (1).

(2) Where, during the period of notice of termination, the person who has been given that notice is guilty of wilful misconduct or disobedience or wilful neglect of duty that has not been condoned by the employer, section 57 of the Act and this Regulation does not apply. R.R.O. 1990, Reg. 327, s. 11 (2).

12. (1) For the purposes of subsections 57 (13) and (14) of the Act and of section 11 of this Regulation, the employer shall not make any deduction from the amounts to be paid thereunder except a deduction,

(a) required to be made pursuant to a statute;

(b) subject to subsection (2), expressly authorized in writing by the person or his or her agent; or

(c) pursuant to an order or judgment of a court. R.R.O. 1990, Reg. 327, s. 12 (1).

(2) An authorization in writing which permits a deduction for,

(a) cash shortages where two or more persons have access to the cash;

(b) losses due to faulty work; or

(c) the value of property stolen from the person,

is void. R.R.O. 1990, Reg. 327, s. 12 (2).

13. Where the employment of a person is terminated by notice of termination or otherwise under the provisions of this Regulation, any payments to which the person is entitled under,

(a) retirement pension;

(b) sickness or disability insurance; or

(c) workers’ compensation,

shall not be payments for the purposes of subsections 57 (13) and (14) of the Act and section 11 of this Regulation. R.R.O. 1990, Reg. 327, s. 13.

14. (1) Subject to subsection (2), period of employment constitutes the period between the time that the employment first began and the time that notice of termination is or should have been given and shall include employment before the coming into force of section 57 of the Act. R.R.O. 1990, Reg. 327, s. 14 (1).

(2) Successive periods of employment of a person by an employer shall constitute one period of employment except where the successive periods of employment are more than thirteen weeks apart, in which case the period of last employment shall constitute the period of employment for the purposes of section 57 of the Act. R.R.O. 1990, Reg. 327, s. 14 (2).

15. (1) Where a person is employed for a term or a task and the term or task exceeds a period of twelve months, the employment shall be deemed not to be employment for a definite term or task. R.R.O. 1990, Reg. 327, s. 15 (1).

(2) Where a person who is employed for a definite term or task continues to be employed for a period of three months or more after completion of the term or task, the employment of that person shall be deemed not to be employment for a definite term or task and his or her employment shall be deemed to have commenced at the beginning of the term or task. R.R.O. 1990, Reg. 327, s. 15 (2).

16. Where the employment of a person is terminated by notice of termination under section 57 of the Act, any payments that the person receives during the period of notice under the Unemployment Insurance Act (Canada) pursuant to a worksharing program instituted by the employer and employees or their agent shall be taken into account and deducted from the wages the person is entitled to receive under subclause 57 (13) (b) (i) of the Act. R.R.O. 1990, Reg. 327, s. 16.