My position has been eliminated by the federal government. HR offered eight-weeks' notice and two and half weeks for every year of service (58 weeks). I have been employed for 20 years and am 57. What are statutory entitlements versus common law?
I am concerned because my employer placed a clause in the release stating that if they feel I am not making "reasonable efforts to find another job" they can cease to pay me at any time during the 58 weeks.
THE FIRST ANSWER
Partner and head of litigation and dispute-resolution practice, McLeod Law LLP, Calgary
An employee's termination-notice entitlements come from three sources: legislation, the common law and/or a written contract.
If you have a written employment contract setting out your termination provisions, then what is set out in that contract is the starting point.
As a federal worker, and not a union employee, the Canada Labour Code applies. That requires:
- Two weeks’ notice, in writing, of the employer’s intention to terminate your position, or two weeks’ wages in lieu, as termination notice;
- Two days’ wages for each year of service, as severance pay.
Having been there for 20 years, this amounts to two weeks' termination notice, plus 40 days' severance, for a total of 50 days.
This is the minimum that must be provided. The common law typically increases that entitlement, taking a myriad of factors into account, including, but not limited to, the character of the employment, the length of the employee's service to the company, the employee's age and the availability of alternative employment. Under common law, terminated employees have an obligation to mitigate their losses by attempting to find comparable employment. If an employer is providing pay in lieu via salary continuation, they often put in a caveat that if and when the employee secures commensurate replacement employment, the continuation ends. This is fair as an employee is not entitled to receive more for being terminated than they would if they were employed.
Without seeing the clause requiring "reasonable efforts," this could be difficult for the employer to act upon, as there can be numerous reasons why a particular job is not acceptable, such as commute, salary, or hours. An employee is not required to take the first job available, and accepting a lower salary as partial mitigation does not necessarily cease all obligation on the now former employer.
The best option would be for you to seek legal counsel, and attempt to negotiate a lump-sum payment.
THE SECOND ANSWER
Principal, yourresumepro.com, Toronto
Check with a lawyer as to your entitlement. There is a formula to determine severance payout.
But you need to forget the scare tactics and get to work looking for a new job. If you have outplacement services, get started with them. Check out your local Employment Ontario centre and attend workshops and get registered with a counsellor once your eight weeks are up.
Read articles and books on job search.
Put a binder together or organize a file online of all the jobs you apply to. Document everything. Put in a sample of the cover letter you submitted and any personal communication you had with anyone from that company. Have a professional résumé writer write your résumé – it has to be outstanding to get noticed.