A recent decision of Arbitrator Randy Levinson found that the
Employment Standards Act, 2000 ("ESA") does not
require an employer to pay termination pay to disabled employees if
the employer wishes to provide written notice of termination
instead. In Quality Meat Packers Limited and the United Food
and Commercial Workers Canada, Local 175 (as yet unreported),
Arbitrator Levinson based his decision on the fact that the
disabled employees did not provide any services to the employer and
were therefore not entitled to any compensation.
While this may seem straightforward, this issue has been a
source of debate for some time within the legal community. On one
side of the debate, employee representatives and advocates (whether
unionized, as in this case, or otherwise) have argued that, where
an employee is not at work due to a disability they must be
provided with termination pay when their employment is terminated,
on the premise that to do otherwise is to discriminate on the basis
of disability which runs afoul of the Human Rights Code.
On the other side of the debate, the argument focuses on the strict
interpretation of the ESA which states that the employer has the
option of providing either notice of termination
or termination pay. It should be noted that in any
instance of working notice, all regular wages must be paid to the
employee, and there is much discussion in the decision with respect
to how "regular wages" are determined.
In this instance, Arbitrator Levinson determined that in fact
the choice of notice of termination or termination
pay is not discriminatory. This determination was based on the
purpose of the termination provisions of the ESA. Arbitrator
Levinson found that the specific reason for providing notice of
termination was to allow the employee to begin his or her search
for alternate employment before the end of his or her current
employment. The reason for termination pay instead of actual notice
is to cushion the transition where that notice period is not
provided, and the pay is commensurate with the amount of notice the
employee should have received; it is not an additional or separate
Thus, the purpose of the ESA is achieved when an employer
provides actual notice of the termination, and the employee will
earn their regular wages during that notice period in accordance
with whatever their contract of employment (in this case, a
collective agreement) requires. Notwithstanding the fact that a
disabled employee may not in fact earn any money during this notice
period, an employee who receives working notice but does not
provide any services (and therefore does not earn any compensation)
is in exactly the same position as an employee who receives working
notice and does provide services (and does receive compensation)
vis-à-vis the purpose of the statutory termination
provisions. Please contact one of the lawyers at CCP if you have
any questions concerning this decision or to discuss your
obligations as an employer at the point of dismissal.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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