Employment Law: ESA Standards, Wrongful Dismissal, and Human Rights
What the Exam Tests in Employment Law
The Employment Law domain tests the Ontario Employment Standards Act, 2000 (ESA), the common law of wrongful dismissal, and human rights obligations under the Human Rights Code. Questions often turn on termination notice, severance pay, just cause, and the interaction between statutory minimums and contractual entitlements.
Core Rules and Concepts
- ESA notice. Employees with at least three months' service are entitled to notice of termination or pay in lieu: one week per year of service, to a maximum of eight weeks.
- ESA severance. Severance pay applies where the employee has five or more years of service and the employer has a payroll of at least $2.5 million or has severed 50 or more employees in six months. Severance is one week per year of service, to a maximum of 26 weeks.
- Common law notice. Courts award reasonable notice based on character of employment, length of service, age, and availability of similar work (the Bardal factors). Common law notice often exceeds ESA minimums.
- Just cause. An employer may dismiss without notice for just cause, but the threshold is high; minor misconduct generally does not suffice.
- Human rights. The Human Rights Code prohibits discrimination in employment and requires accommodation to the point of undue hardship.
- Reprisal. The ESA prohibits reprisal for exercising ESA rights.
Worked Example
An employee with 10 years' service, age 55, is terminated without cause. ESA notice is eight weeks (capped). ESA severance is 10 weeks if the payroll threshold is met. Under the common law, a court might award 10 to 12 months' notice given the employee's age and service, subject to any enforceable contractual limitation.
Traps That Cost Marks
- Treating ESA notice and severance as the same entitlement.
- Forgetting the payroll threshold for ESA severance.
- Assuming a contractual termination clause overrides ESA minimums.
- Applying the Bardal factors without considering the employee's age.
- Missing the duty to accommodate to undue hardship.