What rights do you have if you are in ‘at will’ employment?
Canada doesn’t have at will employment, right? Then why is that your contract states ‘at will’. And why is it that you just been fired without prior notice. In this article we break down the realities of at will employment Canada workers have to face.
If it looks like at will, talks like at will, and behaves like at will – yes, it’s probably at will employment.
You’ve read it time and again on the internet, the Employment Standards Act does not allow at will employment contracts in Canada. But that doesn’t mean employers are not creative in the ways they can achieve the ‘at will’ result.
In this article we look at how termination can be effected in a manner akin to at will. Also, we look at what options you have.
What is at will employment?
At will contracts gained popularity in the United States of America. These allow employers vast freedom in dismissing employees. So what does it mean for employees when it comes to termination:
- No cause has to be shown
- No reasons have to be given
- No notice period
- No termination pay
To sum up anecdotally: at will employees work at the will of the employer.
How does the ESA protect you from attempts to fire you at will?
Canadian employment law tries to limit the risk employees face from sudden and arbitrary termination. To this end, the Employment Standards Act and provincial legislation work hand-in-hand to protect workers’ rights. A few ways it does so are:
Notice period – Mandated notice period for employees who have worked for the employer for more than 3 months consecutively. Minimum notice period increases as employees accrue years of service.
Termination pay – If the employer gives no notice or less notice than is prescribed by the ESA, the employee is entitled to termination pay.
Termination without cause – Employees with a certain length of service (such as two years in Quebec) cannot be fired without cause.
Severance pay – Employers can terminate employees for a variety of non-performance reasons too, but severance pay may be payable. It is required if the employee has accrued five years of service.
How Can Employers Achieve At Will Employment, Canada?
For the most part Canada tries to control at will laissez faire in dismissing workers. However, there are certain situations when employers can dismiss employees at will:
- Employee has worked for less than 3 consecutive months
- ‘Termination with cause’ (such as for disobedience or wilful misconduct)
- Exempt employees in industries like construction and the airline industry
- Employees who refuse suitable alternatives
- Constructive dismissal (where the employee is made to quit because of a demotion or reduction in pay)
What can you do if you have been dismissed without notice or pay?
The first thing to remember is that your employer cannot contractually exclude the ESA. If your contract tries to go below the minimum conditions prescribed by the ESA, get in touch with employment termination lawyers immediately.
Moreover, if you have been fired without pay or notice period, you should get in touch with employment termination lawyers immediately. Soni Law Firm has helped many people fight for the severance pay they were owed. Our lawyers give you mature and practical advice, keeping in mind your professional goals and personal circumstances.