THE QUESTION
My employer gave me two weeks notice that they will terminate my position. I have been working at the company for about two years. I’m embarrassed about being let go and would rather have severance pay than have to show up for work. Is there any way I can decline the notice period and get severance instead? What happens if I don’t show up for my last two weeks of work?
THE FIRST ANSWER
Lai-King Hum, founder and senior lawyer, Hum Law Firm, Toronto
You cannot simply decline the notice period and get severance pay instead. Nor can you not bother to show up for the last two weeks of work and still expect to be paid.
Unless your employment contract states that you will be given pay in lieu of notice, your employer has the option of providing notice when terminating your employment (requiring you to continue working) or pay in lieu of notice. In your case, the employer opted to give you notice of termination, possibly to help in the transition of your job responsibilities.
Refusing to work through this notice period puts you at risk of being seen as abandoning or effectively resigning from your position. It could also be used by the employer as a basis to terminate for cause or wilful misconduct. Either way, you would not get paid and likely would not qualify for employment insurance benefits. Finally, if your absence causes problems for the planned transition, you could potentially be asked to pay for any additional costs incurred by the employer – this is rare, but possible.
That said, under Ontario’s Employment Standards Act (ESA), you may be entitled to more than two weeks’ termination pay, which is the minimum. Unless your contract clearly limits you to the ESA, you may be entitled to common law reasonable notice. Depending on your position and pay, that could be two months, maybe even up to six months, of termination pay.
You can ask the employer to keep your termination confidential, shared only with those who need to know. Most employers prefer this too, to avoid affecting workplace morale. If your work isn’t urgently needed and you’re entitled to more compensation or have unused vacation time, you can try to negotiate a severance package that lets you leave earlier.
However, the employer doesn’t have to agree. If they don’t accept, it’s usually better to complete the notice period.
THE SECOND ANSWER
Susanna Allevato Quail, partner, Allevato Quail & Roy, Vancouver
You are not legally entitled to decline the notice period and get severance instead, unless you have a written employment contract or a collective agreement (if you are unionized) that specifically provides this. If you don’t show up for your last two weeks of work, your employer will be entitled to terminate your employment for cause and stop paying you. However, employers are often open to providing pay instead of working notice. In fact, requiring employees to actually work the notice period is very much the exception.
Typically, employees are only asked to work through the notice period where the termination is because of external circumstances, such as the loss of a major grant at a non-profit or the conclusion of some significant project, after which point their services will no longer be needed. It is generally bad for morale and productivity to have an employee who has been given notice of termination show up every day: the employee is unlikely to be in the right headspace to do good work, and it is awkward and stressful for coworkers who may fear the same thing happening to them.
It would not be unreasonable to ask your employer to allow you to take severance pay instead of working your final two weeks, and a reasonable employer would be likely to agree. However, if your employer declines, you have no legal recourse.
Have a question for our experts? Send an email to NineToFive@globeandmail.com with ‘Nine to Five’ in the subject line. Emails without the correct subject line may not be answered.