Fired Without Notice and the Employer Won't Pay: Your Rights Under the ESA

What was my employer legally required to do?

It had to pick one of two options, and it picked neither. Section 54 of the ESA reads: "No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer, (a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or (b) has complied with section 61."

Walk both limbs against what actually happened to you. Limb (a) requires written notice that has expired. A verbal "today is your last day" is not written notice, and even a written letter handed to you on your last day fails the requirement that the notice "has expired," because it never ran. Limb (a) also references section 58, which is the separate notice regime for large group terminations; that section is not reproduced in this article, so if fifty or more people went at once, see mass terminations and group layoffs.

Limb (b) requires compliance with section 61, which is the pay in lieu route. Compliance is not partial. Section 61(1) requires both the lump sum in clause (a) and the continued benefit contributions in clause (b). An employer that pays nothing has not complied with either. That is the entire universe of lawful options in section 54. The section contains no exception for a cash flow problem, no exception for the employer being unhappy with you, and no exception for a disputed final paycheque.

One threshold matters: section 54 applies to an employee "continuously employed for three months or more." If you were there less than three months, section 54 does not reach your dismissal, though a written contract or the common law may still give you something. See what you are owed if fired on probation.

How much notice was I entitled to?

Section 57 sets a sliding scale from one week to eight weeks based on your period of employment, and every step of it is spelled out in the statute. Because your employer gave no notice at all, section 61 converts each of these week figures directly into a lump sum of pay. Find your service length in the table below.

Eight weeks is the ceiling under section 57. That ceiling is one of the main reasons the ESA figure is almost never the real number: it stops climbing after eight years, while the common law does not. More on that below, and in ESA termination notice and pay.

What exactly does section 61 make them pay?

Section 61(1)(a) requires "termination pay in a lump sum equal to the amount the employee would have been entitled to receive under section 60 had notice been given in accordance with that section," and section 61(1)(b) separately requires the employer to keep making benefit plan contributions. So the money is measured by section 60, which is worth reading limb by limb.

• Section 60(1)(a): the employer "shall not reduce the employee's wage rate or alter any other term or condition of employment." Your termination pay is calculated at your real rate, not a reduced one, and not at a rate the employer cut on the way out the door.
• Section 60(1)(b): the employer "shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week." That is a floor, not a target. A commissioned or variable earner does not get dropped to base.
• Section 60(1)(c): the employer "shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee's benefits under the plan until the end of the notice period." Health, dental, and, importantly, disability coverage.
• Section 60(2): if you have no regular work week, or you are paid on a basis other than time, the amount is "the average amount of regular wages earned by the employee per week for the weeks in which the employee worked in the period of 12 weeks immediately preceding the day on which notice was given."
• Section 60(3): if the employer fails to make the benefit contributions, "an amount equal to the amount the employer should have contributed shall be deemed to be unpaid wages for the purpose of section 103." Dropped benefits are recoverable as wages, not written off.
• Section 60(4): "Nothing in subsection (3) precludes the employee from an entitlement that he or she may have under a benefit plan." The deeming in 60(3) is an add-on, not a substitute for your claim under the plan itself.

Section 61(1.1) makes one adjustment for the no-notice situation you are in: where you have no regular work week or are paid on a basis other than time, the twelve-week averaging window in section 60(2) is read as "the 12-week period immediately preceding the day of termination." That matters if you are commissioned or on variable hours; see severance for commission and sales employees.

Section 61(2) is the only remaining limb, and it does not apply to an individual dismissal. It applies where the employer "would otherwise be required to provide notices of termination under section 58," which is the group termination regime. If you were one of a large group let go together, flag it, because the group rules can be more generous than section 57.

Do I also get severance pay on top of that?

Possibly, and it is a completely separate entitlement from termination pay. Section 65(7) says severance pay "is in addition to any other amount to which an employee is entitled under this Act or his or her employment contract." Two conditions have to be met: a severance under section 63, and eligibility under section 64.

Section 63(1) lists five ways an employer severs employment. Limb (a) is yours: "the employer dismisses the employee or otherwise refuses or is unable to continue employing the employee." The other four limbs cover different situations. Limb (b) is constructive dismissal where you resign in response within a reasonable period. Limb (c) is a layoff of 35 or more weeks in 52 consecutive weeks. Limb (d) is a layoff caused by permanent discontinuance of all of the business at an establishment. Limb (e) is where you resign on at least two weeks' written notice during a statutory notice period, and section 63(3) deems that severance to occur on the day the employer's notice would have taken effect.

Subsections 63(2) through 63(2.4), including the "excluded week" definition, exist only to work out the arithmetic of the layoff limb in 63(1)(c). If you were dismissed outright rather than laid off, none of them apply to you and you do not need to count weeks. If you were laid off instead, read rights when laid off.

Eligibility then runs through section 64(1): you must have been "employed by the employer for five years or more" and one of two limbs must be met. Limb (a) is a permanent discontinuance of all or part of the business at an establishment where you are one of 50 or more employees severed within six months. Limb (b) is simply that "the employer has a payroll of $2.5 million or more." Most people qualify, if at all, under limb (b).

Section 64(2) tells you how the payroll test is measured, and either method suffices: (a) total wages of all employees in the four weeks ending with the last completed pay period before your severance, multiplied by 13, reaching $2.5 million; or (b) total wages of all employees in the employer's last or second-last fiscal year reaching $2.5 million. Section 64(3) excludes prescribed employees, which is a narrow regulatory carve-out. Section 64(4) deems a single location to be an establishment where the business partly closes there, the location is part of a multi-location establishment, and 50 or more employees are severed within six months.

The calculation is in section 65(1): your regular wages for a regular work week multiplied by the sum of (a) completed years of employment and (b) completed additional months divided by 12. Section 65(2) counts "all time spent by the employee in the employer's employ, whether or not continuous and whether or not active," so an earlier stint with the same employer and periods of leave count. Section 65(2.1) is the one carve-out: service credited toward an actuarially unreduced pension benefit is excluded for severances on or after November 6, 2009. Section 65(5) caps severance pay at 26 weeks of regular wages, and section 65(6) supplies a twelve-week average where there is no regular work week.

Finally, section 65(8) is a closed list. Only three things may be set off against severance pay: supplementary unemployment benefits received after severance and before severance pay becomes payable; an amount paid under the employment contract for loss of employment that is based on length of employment, service, or seniority; and severance pay previously paid under the Act or a predecessor or an equivalent contractual provision. Termination pay is not on that list, which is the statutory answer to an employer who says the two amounts are the same thing. See termination pay vs severance pay.

They say I was fired for cause. Can they pay nothing?

Almost never, and saying the word "cause" does not make it so. Section 54 contains no cause exception on its face; the only exemption sits in a regulation, and it is far narrower than what most employers mean by cause. It reaches wilful misconduct, disobedience, or wilful neglect of duty that is not trivial and has not been condoned by the employer.

"Wilful" is doing the thing on purpose, knowing it was wrong. Being slow, disorganized, careless, a poor fit, or in conflict with a manager is not wilful. Even genuine misconduct has to be assessed in context and in proportion to the response, which is the framework the Supreme Court set in McKinley v. BC Tel, 2001 SCC 38. And the two standards are not the same: in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310, the Court of Appeal upheld cause at common law while the employee remained entitled to his statutory pay, because the regulatory threshold was not met.

Practically, this means the burden is on the employer, not you. An employer that never issued a warning, never investigated, and produced the cause allegation only after you asked about your pay is in a weak position. See with cause vs without cause and fired without warning.

My contract says I only get the minimum. Does that settle it?

Only if the termination clause is enforceable, and a large share are not. The starting point is that no contract can give you less than the ESA, and a clause that tries is void rather than merely reduced to the minimum. In Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986, the Supreme Court held that where a termination provision is invalid, the employee's common law entitlement to reasonable notice revives in full.

The reach of that principle widened in Waksdale v. Swegon North America Inc., 2020 ONCA 391, where the Court of Appeal held that a single offside limb, in that case the just cause provision, voids the termination provisions as a whole, even if the employer did not rely on the offending limb. So a for cause clause written below the statutory standard can take the without cause clause down with it. Ontario courts continue to examine other drafting problems as well; the reasoning at paragraphs 19 to 22 of Dufault v. Ignace (Township), 2024 ONSC 1029, is one example, though it is a Superior Court decision and should not be treated as settled appellate law.

Have the clause read before you accept the number attached to it. See is my termination clause enforceable and signs a termination clause is unenforceable.

Is the ESA minimum all I can get?

No. The ESA is a floor, not a settlement. Unless a valid contract clause limits you, the common law entitles you to reasonable notice, which is set by the factors described in Bardal v. Globe & Mail Ltd., 1960 CanLII 294 (ON SC): the character of the employment, length of service, age, and the availability of similar employment having regard to experience, training and qualifications.

The practical gap is large. Section 57 stops at eight weeks after eight years. The common law does not stop there. In Dawe v. The Equitable Life Insurance Company of Canada, 2019 ONCA 512, the Court of Appeal upheld 24 months for a long-service senior employee. In Currie v. Nylene Canada Inc., 2022 ONCA 209, a lengthy notice award was upheld for an older employee with narrow transferable skills. In Milwid v. IBM Canada Ltd., 2023 ONCA 702, a long-service employee's award was upheld with an adjustment for market conditions. And in Dussault v. Imperial Oil Ltd, 2019 ONCA 448, employees recruited away from secure jobs received notice reflecting service with the prior employer.

Two things reduce the number. First, mitigation: Evans v. Teamsters Local Union No. 31, 2008 SCC 20 confirms you must make reasonable efforts to find comparable work, and in some circumstances that includes considering re-employment with the same employer. Keep a written record of every application. Second, earnings from a new job during the notice period are generally credited against what the employer owes. See how much severance and the duty to mitigate.

If the dismissal itself was handled in a way that caused you real harm, for example a false public cause allegation or a deliberate refusal to pay statutory amounts as leverage, Honda Canada Inc. v. Keays, 2008 SCC 39 recognizes damages for the manner of dismissal where the employer breaches its obligation of good faith and the employee suffers a foreseeable, provable injury. See bad faith dismissal damages.

How do I actually force them to pay?

You have two enforcement routes, and you generally have to choose one for the same entitlement. Route one is a complaint with the Ministry of Labour. Section 96(1) provides that "a person alleging that this Act has been or is being contravened may file a complaint with the Ministry in a written or electronic form approved by the Director." It is free and you do not need a lawyer.

Two limits sit right beside it. Section 96(2): "a complaint that is not filed in a form approved by the Director shall be deemed not to have been filed," so an email to an inspector is not a complaint. Section 96(3): "a complaint regarding a contravention that occurred more than two years before the day on which the complaint was filed shall be deemed not to have been filed." Two years is the outer edge, not a target.

Route two is a civil claim, which is where the money usually is, because a Ministry officer can order the statutory minimum but cannot award common law reasonable notice. Ontario's Small Claims Court handles claims up to $35,000, which covers a great many of these cases without a full Superior Court action. Filing an ESA complaint for termination or severance pay will generally bar you from suing for the same entitlement, so decide the route before you file anything. See the wrongful dismissal claim process and limitation periods.

What should I do in the next two weeks?

Move on documentation and income first, then enforcement. The paperwork you gather in the first week is what makes the claim straightforward later, and the EI application should not wait for the severance dispute to resolve. Work through these in order.

1. 1.Write down the facts today: your first day, your last day, who told you, the exact words used, whether anything was in writing, and whether cause was alleged. Date the note.
2. 2.Collect your last three months of pay stubs, your employment contract and any offer letter, your benefits booklet, and any performance reviews or warnings. Email them to a personal account before your work access is cut.
3. 3.Confirm your period of employment and find your line in the section 57 table above. That number is your statutory floor, before severance pay under section 64.
4. 4.Ask in writing for your Record of Employment and your final pay, and keep the request. See Record of Employment and when an employer withholds final pay.
5. 5.Apply for EI right away. Do not wait for the severance question to settle. See EI benefits after job loss.
6. 6.Check whether your benefits, especially any disability coverage, were cancelled on your last day, since section 61(1)(b) required them to continue.
7. 7.Start a mitigation file: every job applied for, with dates and confirmations.
8. 8.Have the termination clause and any release reviewed before you sign or file anything, since filing an ESA complaint can foreclose the civil claim. Book a free severance pay review.

One last point on tone. Employers who refuse to pay anything are often testing whether you will go away. The statute does not treat this as a negotiation: section 54 says the employer "shall not" terminate without doing one of two things, and it did neither. You are not asking for a favour.

About the Author

Priya Sharma

Legal Writer, Mirza Law

Priya Sharma is a legal writer at Mirza Law in Toronto. She writes about wrongful dismissal, workplace rights, and what Ontario employees can do when they are treated unfairly.

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