Working notice is when an employer provides advance written warning that your employment will be terminated on a future date, and requires you to continue working until that date arrives. Rather than providing a lump-sum severance payment, the employer allows you to “earn” your termination pay by keeping you on the payroll during your notice period.
On This Page:
- 1. What is Working Notice in Ontario?
- 2. The 3 Golden Rules
- 3. Time Off for Interviews
- 4. Can I Quit During Notice?
- 5. Notice is Too Short
- 6. Get Legal Advice
What is Working Notice in Ontario?
In Ontario, when an employer decides to fire a non-unionized employee without cause, they are legally required to provide advance warning. They have two choices:
- Pay in Lieu of Notice: They terminate you immediately and pay you the wages you would have earned during the notice period.
- Working Notice: They give you the notice in real-time, requiring you to work through the weeks or months leading up to your termination date.
While working notice is entirely legal under the Employment Standards Act (ESA), it is often an incredibly awkward and stressful time for the employee.
The 3 Golden Rules Employers Must Follow
During a working notice period, your employer can’t legally alter the fundamental terms of your employment. If you are placed on working notice, your employer must adhere to these three rules:
- Rule 1: No Pay Cuts. Your salary, hourly wage, and regular commission structures must remain exactly the same.
- Rule 2: Benefits Remain Active. Your health, dental, and life insurance benefits must be fully maintained until your final day of work.
- Rule 3: No Demotions or Hostile Treatment. Your employer can’t strip away your core duties, demote you, or allow the workplace to become toxic.
Time Off for Job Interviews (Mitigation)
This is a critical right that many employees — and employers — are completely unaware of.
When you are terminated, you have a legal duty to “mitigate” your damages, which means you must actively try to find a new job. Because working notice keeps you tied up during regular business hours, the law generally requires your employer to provide you with reasonable time off to attend job interviews.
If your employer unfairly blocks you from attending interviews or penalizes you for job hunting during your notice period, they are actively hindering your ability to mitigate, which can increase the amount of severance pay they ultimately owe you.
Can I Quit During My Working Notice Period?
Yes, you can resign at any point during your working notice period. However, you must be extremely careful before doing so.
If you voluntarily resign and walk out before your specified termination date, you forfeit the remainder of your working notice pay. For example, if you are on a 3-month working notice period and you quit after 1 month, you will not be paid for the remaining 2 months.
What if the Notice Period is Too Short?
Employers frequently make the mistake of only giving employees their minimum ESA working notice (which caps at 8 weeks). However, the ESA is just the bare minimum.
Under common law, you are likely entitled to exponentially more notice based on the Bardal Factors — your age, length of service, and position. Common law notice can equal up to 24 months.
If your employer gives you 8 weeks of working notice, but a common law calculation dictates it will actually take you 10 months to find a similar job, they are legally required to pay you out for the remaining 8 months once your working notice ends.
Talk to an Employment Lawyer
If you have been placed on working notice, or you recently completed your notice period and believe it was too short, the Ontario employment lawyers at Samfiru Tumarkin LLP can help.
As Ontario’s most positively reviewed employment law firm, we have helped tens of thousands of non-unionized employees enforce their rights, escape toxic working notice environments, and secure the full financial compensation they deserve.