By: Aidan Testa
Depending on where you live your dismissal protections vary wildly. In Canada there is a standard of notice upon termination but a similar standard does not exist in many of the United States. There, employment is considered to be at-will and the protections offered to many Canadians do not exist. This piece is a brief comparison between the two regimes.
Though the specifics differ from state to state, the general rule of at-will employment is that the employee can be dismissed for any reason, at any time, without explanation. To quote the California Supreme Court, at-will employment means that when dismissing an employee, the employer can act “peremptorily, arbitrarily, or inconsistently, without providing specific protections such as prior warning, fair procedures, objective evaluation, or preferential reassignment.” There is no requirement for notice, nor a need to give a reason.
The rationale for this relationship is that employment relationships are fundamentally contractual. Because of this, no protections against termination are assumed by the court; if there were going to be any such protections, they would be found in the contract of employment. Absent any statutory intervention, an employee can be terminated for any reason.
This does not mean that there are no protections for employees, or that wrongful termination does not exist. It does, but making such a claim requires more than simply being terminated without a reason. An employee in an at-will jurisdiction cannot make a claim for wrongful termination based on being terminated without a reason, but they can if they were terminated for the wrong reason. Continuing with the California example, an employee cannot be terminated for the basis of a protected characteristic, such as race, religion, sex, or disability. If an employee is terminated on these bases, then they have been discriminated against and can claim wrongful termination.
At-will employment does have the advantage being reciprocal. That is, though an employee may be terminated without notice and for almost any reason, they have the same right against the employer. The customary two week’s notice is just that, a custom. Though it is courteous to provide such notice, an employee can drop their employment at any time under this regime, potentially allowing them to start a new job quickly after being hired, or to leave a negative environment. On the other hand, being terminated without notice can bring on sudden precarity, especially for someone working paycheck to paycheck.
Canadian Dismissal Protection
In contrast to at-will states, Canadian provincial law generally affords protection against dismissal. With Ontario as our example, its Employment Standards Act provides that, if an employee has been employed for at least three months, they cannot be terminated without notice. This notice must be written and the length of time it must be given in advance of termination depends on how long the worker was employed. The minimum is one week for an employee who has been employed for less than one year and eight weeks for an employee employed for eight years or more. No reason needs to be provided.
Notice can be ignored in two cases. The first is if the employer pays the employee the amount, they would have received from working during the notice period, as well as continues to make benefits contributions. This way, the employee is still protected from the consequences of immediately and unexpectedly losing work by continuing to receive income. The second is where an employee is guilty of wilful misconduct, disobedience, or wilful neglect of duty – a high standard above mere poor performance, described by courts as, effectively, “being bad on purpose.”
This regime divorces dismissal protections from the idea of cause. Although wrongful termination does exist in Ontario, it is not necessary to make a claim when one is terminated. What matters is whether the appropriate period of notice, or payment in lieu of notice, was met. This affords employees much more security than at-will systems. There is no reciprocal notice period for employees in Ontario, subject to some specifications. Employees can generally leave their employment at-will. Of course, all of these rules are subject to contractual specifications. These contracts must abide by the minimums under the ESA, however, so parties cannot agree to an at-will structure.
These two systems provide a general view of two different styles of employment regulation. In at-will states, protections against dismissal are generally left to the contracting parties. There is more freedom to negotiate terms, but also less protection against surprise termination. In Canada the context is much different. There exists less contractual freedom in the form of minimum standards for termination, but much more protection for employees. Each system has its benefits, but it is undeniable that the Canadian system of required notice allows employees more protection against the consequences of suddenly losing their employment
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
 Guz v Bechtel National Inc, 24 Cal 4th 317 (Cal Sup Ct. 2000), at 350 [Guz]. See also California Labor Code, 3 LAB art 4, s. 2922.
 Guz, supra note 2.
 Fair Employment and Housing Act, Government Code Title 2, Division 3, Part 2.8 art 1, s. 12940(a). The full list of protected classes is: “race, religious creed, color, national origin, ancestry, physical disability, mental disability, reproductive health decisionmaking, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person.”
 Employment Standards Act, SO 2000, c 41 s 54(a) [ESA].
 Ibid, ss 57(a)-(h).
 Ibid, ss 60(1)-(2).
 O reg 288/01, s 9(1)(6); Summers v Oz Optics Ltd., 2022 ONSC 6225, at para 7.
 Specifically, where there is a notice of mass termination given to employees, they must provide notice if they intend to resign. Esa, supra note 4, s 58(1).
 ESA, supra note 4 s 5(1), North v Metaswitch Networks Corp., 2017 ONCA 790.