You’ve probably read Michael’s blog about employee liability. If not, here it is. If you ARE looking to present new contracts to your existing staff, HOW MUCH notice are they entitled to? Well, the answer, as is usually the case with the law, is: IT DEPENDS. And the first “it depends” is this: do you already have a contract with your employees and what does that contract say about notice requirements?
When There is an Existing Contract with Employees
If you already have a written contract with your employees, then the main thing to look for in the contract is the “termination” provisions. In other words, you need to find out what the contract says about how you can end the employee / employer relationship. If the contract says that the employee is entitled to termination notice or pay in lieu of notice in accordance with the Employment Standards Act, 2000 (often referred to as the “ESA“), then, in order to present a new contract, you must give the employee either notice or pay in lieu of notice in accordance with the ESA which is as follows:
|Notice / Pay In Lieu Owed
|1 year or less
|1 – 3 years
|3 – 4 years
|4 – 5 years
|5 – 6 years
|6 – 7 years
|7 – 8 years
|8 years or more
When There is No Existing Contract with Employees
If you do not already have a written contract with your employees, then the courts in Ontario have said that depending on certain criteria, each employer may owe much more than the minimum standards laid out in the ESA.
Some of the criteria include: the age of the employee, the position of the employee, the likelihood that they will find comparable work in a reasonable amount of time, the economic climate at the time, etc.
Despite all these criteria, there is a general trend that has appeared in the case law surrounding the issue of notice: Generally speaking, employers will owe their employees 1 month of notice up to a maximum of up to 26 months, depending on the circumstances.
Lets presume that you have decided to present your staff with new employee contracts. You have one employee who has worked with you for 20 years and has a contract that limits your liability to the ESA (lets call her Lisa) and one employee who has worked with you for the same amount of time but has no written contract (lets call her Mary).
In order to present Lisa with a new contract, you will have to give her 8 weeks of notice or pay in lieu of notice.
By contrast, Mary will require 20 months of notice if you want to present her with a written contract.
That’s a huge difference, right? That’s why we always recommend that dentist employers protect themselves by ensuring they have proper written contracts with each of their staff.
NOTE: Independent contractors are not employees and are not entitled to the same minimum/maximum standards as employees.
If you would like to read our tips and tricks when it comes to presenting staff with notice, click here to read more.