I was let go without notice. Can I request notice pay a few months later?

This blog was originally published in the Globe and Mail on September 5, 2023

I was let go without notice after one year of work. At the time I was quite shocked and not thinking straight, so I didn’t know to ask for severance. But someone told me I would be entitled to severance and could request it up to one or two years later even though I’ve already left. I haven’t signed any releases or paperwork. What are my rights? Are there any advantages to seeking severance right away or is it okay to wait until I’m in a better place to tackle this issue?

Losing your job can be a distressing experience. Employees are typically entitled to take time to think through their options and to seek legal advice before accepting a termination package.

While often used interchangeably, “notice” and “severance” are distinct legal concepts. After one year of service, you are entitled to notice or pay in lieu thereof (known as “notice pay”) but not to severance. In Ontario, the amount of notice pay is governed by the Employment Standards Act (ESA), your employment contract and the common law.

After a year’s employment, under Ontario’s ESA you are limited to two weeks of notice pay. However, depending on the language of your employment contract, you may be entitled to a higher amount based on the common law. You may be also entitled to additional compensation depending on the manner of your termination, the withholding of ESA entitlements, or if any human rights grounds such as disability, gender or race were a factor in your termination.

Under Ontario’s ESA, a terminated employee is entitled to severance pay only after five years of service, and where the employer’s payroll is more than $2.5-million or if the employer terminates more than 50 employees in a six-month period. This is separate and apart from any notice pay.

You have up to two years from the date of your termination to negotiate a termination package after which you are barred from commencing a claim in court. The limitation period for human rights claims can be shorter at one year. While each situation is distinct, it can be advantageous to negotiate a termination package early for a variety of practical reasons. Regardless of when you choose to negotiate, seeking legal advice early is usually beneficial.

The above is provided as general information only. Questions related to being terminated may involve complex legal issues. Contact us today if you would like to consult with our lawyers.