Speaking with an affiliate who specializes in recruiting, I was asked what rights do recruiters have in an employment relationship around termination. My answer, a whole lotta grey.

First thing to determine is was there an employer/employee contract in the first place. There are legal payroll requirements, standard employment contract agreements and many more conditions that determine if the relationship was actually an employer/employee one. With that said, there are also specific requirements that outline a contractor relationship, not to mention if you are a contractor/service provider you are not covered by ESA. For the sake of this blog, let’s move ahead with the assumption that it was a legal employer/employee situation.

Across Canada, each Province has their own (though very similar) laws on Employment Standards. In Ontario and B.C. it is called the Employment Standards Act, in Alberta it is called the Employment Standards Code, get the gist? Now years ago it was very clearly stated in the ESA if you were an employer with less than 50 employees, the Employment Standards Act didn’t apply to you. This is no longer the case. I have tried to locate this statement and it seems to have “disappeared”. Why? Maybe small businesses where using it to their advantage, I don't know but that’s just a guess. However, what I have found are specific areas that touch on the 50 employee requirement. In the general question section of the Employment Standards Act, this is what I found:

Can employees take time off for doctor’s appointments?
An employee whose employer regularly employs 50 or more employees is entitled to 10 personal emergency leave days per year.

And another example:

Are sick leave and bereavement leave covered under the ESA?
Employees who work for employers that regularly employ at least 50 employees are entitled to personal emergency leave in certain situations.

So my first recommendation, if you work for an employer who does not “regularly employ at least 50 employees” , you will want to contact your Ministry of Labour – Ontario (or whatever they call it in your Province ( i.e.) Alberta – Employment & Immigration) and get the low down from them on whether or not you are covered by the ESA. Don’t be surprised if you get a “grey” answer – but let’s say you’re covered in this situation.

One of the mistakes people make is they “only” read a part section of the area they are looking up, for example termination. They may read something that says if they worked 7 years but less than8 years they are owed 7 weeks of notice. But really, how many employers are going to fire you and then let you stay on for 7 weeks? Highly UNLIKELY. So there is pay in lieu of notice...note I am only speaking about pay and not benefits – that’s a whole other section. Back to the story, you just got fired and you’ve been there over 7 years but less than 8 years, and there was no “notice” period – they actually helped you out the door that same afternoon. You have just read through this section in the ESA and are expecting your 7 weeks of pay in lieu of notice...but wait a minute you don’t get it – what the heck? Surprise! Guess what you didn’t read was a previous sub-section in the ESA that talks about termination “with” vs. “without” cause. Yep that’s right, looks like your employer has a list of examples of “guilty, wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” What might these be you ask? How about performance issues that have been documented and saved on file, or insubordination write ups. Believe me this is just scraping the top of an endless well of grey.

What is stated above is my interpretation of the ESA – Ontario, it has no legal standing and anyone looking to get into the legal details must follow up the Ministry of Labour directly. However, what I wanted to do was open your eyes to the levels of grey and get you educated on reading all sub-sections within the standard you may be curious about or interested in looking up.

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