Common law reasonable notice still longer than extended mass termination notice: employment lawyer

The Government of Ontario is proposing to amend the Employment Standards Act to ensure remote workers get a longer notice period in case of a mass layoff. Yet employment lawyer Andrew Monkhouse notes that most workers are entitled to even more notice under the common law.

Ontario’s Minister of Labour, Immigration, Training and Skills Development recently announced proposed changes to the Employment Standards Act (ESA) to extend the enhanced minimum notice period to remote workers. Currently, when an employer terminates 50-or-more employees within a month, rather than the standard notice period, under the ESA, of one week per year of service, the terminated employees are entitled to either eight, 12, or 16 weeks, depending on how many employees were terminated.

The enhanced notice period has applied to mass layoffs in an “establishment.” Ontario proposed to broaden the establishment definition to clarify that it encompasses employees working solely from home.

“I think it's nonpartisan legislation. I think it's good legislation,” says Monkhouse. “But the part that's missed in a lot of this is that for the average person who's let go, their employment standards minimum payment… is not everything they're entitled to.”

He says that reasonable notice under the common law is often significantly longer than the minimum notice periods under the ESA, including the extended period for mass terminations.

“They shouldn't just accept the amount they get, even if there's a bump up for being a mass layoff. They should talk to an employment lawyer and find out what their common law notice is because that's – the vast majority of the time – longer.”

“When you do the math on individual cases… in the case of mass termination, the employee can be entitled to 8, 12, or 16 weeks’ notice. But for instance, someone who is a 24-year employee, that person, at common law, is going to be getting reasonable notice of two years, probably.”

Monkhouse adds that the extended notice period is more likely to be equivalent for shorter-term employees. And under the common law, reasonable notice is subject to mitigation. For example, the reasonable notice period would end if the employee gets a new job.

In June 2022, 5.1 million Canadians were working remotely, 30 percent of the workforce, according to Statista. In 2016, that number was four percent.

In Ontario, 2.2 million people were working from home at the end of the fourth quarter of 2022, said the province’s announcement. Of that 2.2 million, 1.4 million worked from home exclusively, while the other 800,000 had a hybrid arrangement.

“Whether you commute to work every day or not shouldn’t determine what you are owed,” said Monte McNaughton, Minister of Labour, Immigration, Training and Skills Development. “No billion-dollar company should be treating their remote employees as second-class. The future of work is here, and our government will continue to lead the country in ensuring workers have the protections they need to find better jobs and earn bigger paycheques in the 21st-century economy.”