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Losing Your Job

Losing your job

The information below tells you about your rights if you lose your job. Some reasons why you might lose your job are:
  • lack of work
  • job cuts
  • business failure
  • your job performance.
Whatever the reason, the law provides some basic protections and they are outlined below.

Laws which protect you:


Statutes

A statute (also called an Act) is a written law passed by the federal parliament or a provincial legislature. The Nova Scotia Labour Standards Code protects most employees in Nova Scotia. It is enforced by the Labour Standards Division of the Nova Scotia Department of Labour and Advanced Education.

The Canada Labour Code protects employees in federally regulated industries such as banks and telephone companies. It is enforced by the Labour Program of the Department of Human Resources and Skills Development Canada.

The Nova Scotia and Canadian Human Rights Acts provide protection against job-related discrimination. They are enforced by the Nova Scotia Human Rights Commission and the Canadian Human Rights Commission.

Common law:

The common law applies to all non-unionized employees and, in some cases, may provide greater protection than the labour codes. “Common law” (also called case law) includes rules made by judges before there was statute law or legislation and rulings by judges as to what the statutes mean.

A third source, collective agreements, protects the rights of unionized employees. The information here deals with the rights of non-unionized employees. It provides general information only. If you have a specific problem, you should talk with a lawyer or the Department of Labour and Advanced Education

Some legal terms used here:

  •  “Consecutive months of continuous service” means an unbroken period of employment. For example, you have worked for your employer from June 1st 2008 to May 31st 2009. It would be 12 months continuous employment. If you worked for your employer from June to December and then from February to May it may still be treated as continuous employment in some circumstances. Under the Nova Scotia Labour Standards Code, a layoff of less than one year does not break the period of continuous employment. Breaks for reasons other than layoff may still be continuous periods of employment if the break is less than 13 weeks.
  •  “Dismissal” is a general term for job termination by an employer. It includes firing, layoff, suspension, lockout, plant shutdown, etc. However, under the Nova Scotia Labour Standards Code there are separate definitions for discharge, layoff and suspension. The differences can be important in determining your rights.
  • “Reasonable notice” refers to the amount of notice that your employer should give you if you are being dismissed.
  •  “Just cause for dismissal” refers to a situation under the Nova Scotia Labour Standards Code and common law where your employer can fire you without notice. It arises when you behave in such a way that you are considered to have broken your employment relationship and have given your employer just cause for dismissing you without notice. The Canada Labour Code does not define “just cause”. It does have provisions for dealing with an employee’s complaint about dismissal.
  •  “Unjust dismissal” or “wrongful dismissal” are legal terms for a situation where your employer fires you without just cause.
Are you an employee?

The labour codes apply to employees who have lost their jobs. Not everyone who works for someone is an employee. People who are self-employed and work for others as independent contractors do not have the same protections as employees. The distinction between an employee and an independent contractor is not always clear. If you control your own work and how it is to be done, use your own tools and materials, and are solely responsible for your own profit and loss, you are most likely an independent contractor.
If you are not sure if you are an employee, you should contact the Labour Standards Division or get the advice of a lawyer.

The federal and provincial labour laws set out minimum requirements. Your employment contract may exceed those minimums and may deal with matters such as notice periods. If you are a unionized employee, the collective agreement between the union and the employer will usually cover such issues as dismissal, notice periods and layoffs.

Q - What are some ways I can lose my job?

Losing a job can come about in many ways. You could be fired, laid-off, locked out or your employer’s business might fail. As far as the law is concerned, any of these may be a dismissal, and you may be entitled to reasonable notice or pay instead of notice. Even if your employer goes out of business, you have a right to notice of dismissal in many cases. What your rights are may depend on the reasons you lost your job. It is therefore important to talk with a lawyer or to a provincial or federal labour representative about your situation.

There are circumstances when an employer may not have to give reasonable notice. One example is an unforeseen event beyond the employer’s control, such as a fire. Your employer must pay the wages and benefits you earned up to the date of dismissal. In some circumstances, your employer may not have to give you notice if the business closes down because it is bankrupt (that is, the business cannot pay its creditors). Usually this only applies if the creditors force the business to close.

Q - What are my rights if I lose my job?

Dismissal with notice

Generally, the law requires your employer to tell you in advance if you are going to be dismissed from your job. This gives you time to prepare for your dismissal and to look for another job. In legal terms this is known as reasonable notice of dismissal. In some circumstances your employer does not have to give you reasonable notice of dismissal. This is discussed later on in this document under “Dismissal without notice”.

Q - How much notice should I get?

How much notice you should get will depend upon the circumstances of your employment and on whether you complain to Labour Standards, or Human Resources and Skills Development Canada, or sue your employer in court.

If you complain to the provincial or federal department, you may get a minimum notice period of one to 16 weeks. The length of notice depends on how long you have worked for your employer and the number of other employees dismissed along with you. If you decide to sue your employer in court for wrongful dismissal, you may get longer notice because the courts generally provide longer notice periods than the minimum provided by the labour codes. However, a lawsuit can be expensive, may take a long time, and may cost more than you stand to win.

Pay instead of notice

In all cases, instead of giving you notice, your employer can pay you an amount equal to the wages and benefits you would have earned during the proper notice period. This is known as pay in lieu of notice and is usually preferable because it frees you to look for another job instead of working out your notice period.

Notice under the Nova Scotia Labour Standards Code

Notice periods apply to most non-union workers in Nova Scotia.

The following are the minimum notice periods required:
  • one week’s notice if you were employed for more than three months but less than two years;
  • two weeks’ notice if you were employed for two years or more but less than five years;
  • four weeks’ notice if you were employed for five years or more but less than 10 years;
  • eight weeks’ notice if you were employed for 10 years or more.

Where 10 or more employees are dismissed within a four week period, the employer must give them between eight and 16 weeks’ notice. The length of notice depends upon the number of workers dismissed and the reason for dismissal. If you have worked for your employer for 10 or more years, you have additional protection under the Nova Scotia Labour Standards Code. If there is no just cause for dismissal, you can ask for your job back. To do this you should ask for reinstatement through the Labour Standards Division.

If you have worked for your employer for less than three months you are not entitled to the notice provisions under the Nova Scotia Labour Standards Code.

Your employer always has a right to give you pay instead of notice. For example, if you are entitled to two weeks’ notice, your employer can give you two weeks’ pay instead.

Notice under the Canada Labour Code

These notice periods apply to workers in federally regulated industries. Notice must be in writing.
The following are the minimum notice periods required:

  • two weeks’ notice of dismissal, or two weeks’ pay instead of notice for all employees with more than three consecutive months of continuous employment;
  • 16 weeks’ notice where 50 or more employees are dismissed from the same industrial establishment within a four week period.
In addition, if you have at least 12 consecutive months of continuous service and you are dismissed without cause, you are entitled to either: 
  • a minimum of five days’ pay, or
  • two days’ pay at the regular rate for each completed year of employment, whichever is more.
Also, if you are dismissed, you can file a complaint of wrongful dismissal with the Department of Human Resources and Skills Development Canada. You must:
  • have 12 consecutive months of continuous employment;
  • not have been laid off;
  • file the complaint in writing within 90 days of dismissal. 
The Department will try to negotiate a settlement between you and your employer. If you are not satisfied with a proposed settlement, you can ask the Department to appoint an adjudicator to decide the issue. The adjudicator may order reinstatement where appropriate or award compensation for lost wages.

Notice under the common law

There are no definite periods of notice under common law. All that is required of an employer is “reasonable notice”, unless there is just cause for dismissal without notice. The purpose of reasonable notice is to provide you with a fair opportunity to find another job. The notice periods granted by the courts under common law are often longer than those required by statute. Each case depends on its facts. Some of the factors usually considered are:
  • your level or position in the organization;
  • your length of service;
  • your age and your ability to find comparable employment;
  • the nature of the industry you work in and industry custom with regard to dismissal and notice;
  • the circumstances surrounding your hiring — especially if you were persuaded to leave;
  • another secure position.

Q - Do all employees have the same rights?

No. Both the provincial and federal labour codes contain a number of exemptions and exceptions that might mean your case is not covered by the general rules. Therefore, it is important that you talk to a lawyer, the Nova Scotia Labour Standards Division or Human Resources and Skills Development Canada about your case.

Some employees may be dismissed without just cause and without proper notice because they are not covered by the termination provisions of the labour codes. An example is construction workers. If you are not covered by the labour codes, you may still use the courts to enforce your rights by suing your employer.

Probationary employees have less protection than permanent employees, although they may be entitled to some notice of dismissal. Some employees are hired for a definite term and know at the time they are hired when their job will end. An example would be a person hired on a government grant. Under the Nova Scotia Labour Standards Code, if you are hired for a definite term of less than 12 months, you are not entitled to notice of dismissal when your term of employment is finished. If you are hired for a definite term of more than 12 months, the notice provisions of the Nova Scotia Labour Standards Code apply.

Under the Canada Labour Code, if you have worked for an employer for three consecutive months, you should get at least two weeks’ written notice of dismissal or two weeks’ pay instead of notice. Under common law, if your employer dismisses you before your term is complete, you may be entitled to full payment for the unexpired portion of the term, provided you have performed your work satisfactorily. You should get legal advice on your situation.

Unionized employees are treated differently than non-unionized employees. Unionized employees must proceed through the grievance and arbitration procedures set out in their collective agreement.

Q - Dismissal without notice

Your employer may be justified in dismissing you without notice if:
  • you repeatedly or in some serious way failed to do your job properly, or
  • you have acted in a way that makes it clear to your employer that you no longer wish to work for the company.
Whether your employer is justified in firing you without notice depends upon the circumstances leading up to and surrounding your dismissal. Many factors may be relevant, but they must amount to conduct by you which is inconsistent with the fulfilment of the conditions of your job. The Nova Scotia Labour Standards Code requires “wilful misconduct or disobedience or neglect of duty”. In effect, you must, by your conduct, say to your employer, “I am going to break the terms of my employment.” The law refers to this as “just cause” for dismissal without notice and it usually arises in one of two ways:
  • You may do something so bad that it ends the employment relationship immediately. This includes theft, being drunk on the job, destruction of property, complete disregard for the safety of others, wilful disobedience, insolence and insubordination.
  • There may be a series of smaller incidents, none of which by themselves would be reason to dismiss you without notice, but which, when taken together, show that you are unwilling or unable to fulfill your responsibilities. Your employer is generally expected to try to fix the problem in other ways before dismissing you without notice. This includes giving you warnings, reprimands, and suspensions in a progressive series of steps up to dismissal.

Q - Can I be fired without notice if my employer sells the business?

No. Sale or shut down of a business is not usually reason to dismiss you without notice. Other situations where you usually should not be dismissed without notice are:
  • lack of work or job redundancy due to reorganization or some other action within your employer’s control;
  • personality conflict, unless it is accompanied by misconduct;
  • looking for other work;
  • garnishment of your wages.

Q - What if I become pregnant?

Your employer may require you to take a leave of absence if you cannot reasonably perform your duties because of pregnancy. Apart from this, after one year’s employment you are entitled to 17 weeks’ unpaid pregnancy leave under the Nova Scotia Labour Standards Code. An employer does not have to pay you during pregnancy leave unless it is company policy or part of your contract.

Employment Insurance usually provides income during the pregnancy-leave period. In addition, both parents can take up to 17 weeks’ unpaid parental leave following the birth or adoption of a child.

Under the Canada Labour Code, after six consecutive months of continuous employment, an employee who is pregnant is entitled to 17 weeks’ unpaid leave. It also allows a further 24 weeks’ unpaid leave to either parent. This is also available in the case of adoption.

There is a provision in the Employment Insurance Act to pay parental benefits. These benefits are payable to natural or adoptive parents if they meet entitlement conditions. Benefits are usually for 10 weeks but can be extended to 15 weeks in special circumstances. There is also a plan to allow an employer to top-up (add to) Employment Insurance benefits to bring the amount closer to the employee’s usual take-home pay.

You must be allowed to resume work at the end of your leave without loss of seniority or benefits that you earned up to the date you took pregnancy leave. If you are dismissed or prevented from returning to work because of pregnancy, you should contact the Labour Standards Division or Human Resources and Skills Development Canada.

Q - Can I be fired if I am injured at work and cannot work?

The Workers’ Compensation Act provides some protection to injured workers who have been employed for 12 consecutive months. The employer is required to offer employment to injured workers unless the employer can show that it would cause extreme hardship.

Q - Can I refuse to do unsafe work?

The provincial Occupational Health and Safety Act provides some protection to an employee who:
  • is fired for refusing to do unsafe work;
  • makes a complaint under the Act;
  • is on a health and safety committee; or
  • for other matters covered by the Act.
 A non-unionized worker can make a complaint to the Occupational Health and Safety Division, Nova Scotia Labour Standards within 30 days of being dismissed. Federal occupational health and safety laws are set out in Part II of the Canada Labour Code. Complaints about safety should be made as soon as possible to Human Resources and Skills Development Canada.

Q - Can I be fired because of my colour, sex or age?

Under the Nova Scotia Labour Standards Code you cannot be dismissed from your job, with or without notice, for any reason that is contrary to the Human Rights Act. This means that you cannot be fired because of your race, religion, creed, colour, ethnic or national origin, sex, sexual orientation, age, physical or mental disability or marital status.

Discrimination on the basis of sex is only allowed if there is a bona fide (genuine) occupational qualification based on sex. For example, your employer might employ only women to be attendants in a female change room. Discrimination on the basis of physical disability is only allowed if the disability affects the ability to properly perform the particular job. For example, if you are visually impaired you may not qualify as a driving instructor.

Employees in federally regulated industries have protection under the Canada Labour Code and the Canadian Human Rights Act. If you are discriminated against, you should contact either the Nova Scotia or Canadian Human Rights Commission.

Q - Does my employer have to give a reason for firing me?

Under the Nova Scotia Labour Standards Code, employers usually do not have to give a reason for firing someone. They can usually dismiss an employee at any time as long as proper notice is given. There are exceptions. For example, if you have worked for an employer for 10 or more years, your employer cannot fire you without just cause. Your employer cannot dismiss you for reasons that are contrary to human rights legislation. Your employer cannot dismiss you because you make a complaint under the Occupational Health and Safety Act or for being on a health and safety committee.

Under the Canada Labour Code, if you have been employed for 12 consecutive months, you can write to your employer asking for reasons for your dismissal in writing. The employer must reply within 15 days of your request. If you feel that you were wrongfully dismissed, you can make a complaint to Human Resources and Skills Development Canada.

Q - What can I claim if I am wrongfully dismissed?

Under the Nova Scotia Labour Standards Code you can claim your pay, including vacation pay, for the required notice period. Under the Canada Labour Code you can claim two weeks’ notice or pay instead of notice. Under both codes you may claim reinstatement in some circumstances.

Under the common law you can claim what you would have received in wages and benefits during the proper notice period. Benefits may include bonuses, overtime, travel allowances, club memberships and contributions to health and insurance plans. You can also claim moving expenses and expenses incurred in finding another job, such as travel expenses, cost of resumés and telephone calls. Compensation for mental distress caused by the act of dismissal is sometimes awarded, although it is rare. Also, claims for loss of reputation or for educational or retraining costs are only accepted in exceptional circumstances. You should talk with a lawyer about your situation.

An employee who is claiming unjust dismissal is expected to mitigate damages. This means that you have an obligation to look for suitable alternative employment. Any income that you earn or should have earned may be deducted from the compensation owed you by your employer.

Q - How do I make my claim?

If you have not received proper notice of your dismissal from your employer you may complain to the Nova Scotia Labour Standards Division or Human Resources and Skills Development Canada, or you may sue your employer in court for wrongful dismissal. If you decide to sue your employer in court, you should get legal advice on your situation. If you complain to the Labour Standards Division, you must make the complaint within six months of dismissal. Complaints about unfair dismissal under the Canada Labour Code must be made within 90 days.

In either case your complaint will be investigated and an order for notice or pay instead of notice may then be made, or your claim may be dismissed. In addition there may be a formal hearing before a decision is made. If either you or the employer disagree with the decision, you can appeal. An officer of the Labour Standards Division or Human Resources Development Canada will explain how you make a claim and how you appeal.

If you complain under the Occupational Health and Safety Act, you must do so in writing and within 30 days of dismissal.

If you believe that you were dismissed because of discrimination, you can contact the Nova Scotia Human Rights Commission or the Canadian Human Rights Commission. They have investigative and hearing procedures similar to the Labour Standards Division and Human Resources and Skills Development Canada. Their human rights officers will also advise you of how to proceed with your complaint.

If you are not satisfied with the remedies provided by the labour codes, you may want to sue your employer in court for wrongful dismissal. However, going to court is an expensive and time consuming process. Unless you are a senior and well-paid employee of long service, the amount you stand to win in court may be too little to justify the costs and time involved. You should talk with a lawyer before you decide what to do.

Q - What if I quit my job?

Generally, if you quit your job you will not be entitled to notice or pay instead of notice. Under the Nova Scotia Labour Standards Code, if you have worked for more than three months you must give your employer advance written notice of your intention to quit. You must give one or two weeks’ notice depending upon your length of service. Many types of operations are exempt from the requirement that an employee give notice. If you are unsure, you can check with the Labour Standards Division.

You may not have to give notice if your employer forces you to quit. This is known as “constructive dismissal”.

Examples are if your employer demotes you, reduces your wages or changes your job requirements without your consent and without proper notice. In such situations, you may be justified in resigning from your job and demanding pay instead of notice. Other possible examples of constructive dismissal include:
  • forced transfer;
  • abusive treatment;
  • reduced work week;
  • unpaid overtime;
  • compulsory leave of absence;
  • short-term lay-offs, where this has not been agreed to between you and your employer. Y
You may not have to give notice if your employer has broken the terms and conditions of employment. However, some employees who quit without notice have been ordered by the courts to compensate the employer. You should talk to a lawyer or a Labour Standards Officer before you quit without giving notice.

Under the Canada Labour Code an employee does not have to give notice to quit.

Q - Can I be fired if my employer suspects me of stealing?

The Nova Scotia Labour Standards Code does not specifically say that you can be fired for stealing. However, stealing would likely give your employer cause for firing you without notice. If there is proof that you stole from your employer, there may be just cause for firing you without notice. Problems usually arise where your employer has no proof that you stole but suspects you.

If you are dismissed without notice in these circumstances, you can complain to the Labour Standards Division.

Under the Canada Labour Code, if you feel that the dismissal was unfair, you can make a complaint to Human Resources and Skills Development Canada. You must have been in the job for at least 12 consecutive months.

Q - What can I do if my employer gives me bad references?

The law does not require your employer to give you a reference. If your employer gives you a reference, it does not have to be a good one. For example, employers can tell another employer that they would not employ you again. Instead of asking your employer for a reference, you may wish to ask someone else such as your supervisor or the personnel manager. You may be able to sue your employer if anything is said about you that is not true and which damages your reputation and affects your ability to get another job. Suing can be a long and expensive process. You should talk with a lawyer about your situation.

Q - Where can I get more information?

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