Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Waiver of application of Division

228 On the submission of any person, the Minister may, by order and subject to any terms or conditions specified in the order, waive the application of this Division, or any provision thereof, in respect of any industrial establishment or of any class of employees therein specified in the order if it is shown to the satisfaction of the Minister that the application of this Division, or any provision thereof, as the case may be, in respect of any industrial establishment

• (a) would be or is unduly prejudicial to the interests of the employees therein or to any class of employees therein;

• (b) would be or is unduly prejudicial to the interests of the employer of those employees;

• (c) would be or is seriously detrimental to the operation of the industrial establishment; or

• (d) is not necessary, because measures for the assistance of redundant employees at that establishment that are substantially the same or to the same effect as the measures established by this Division or that provision, as the case may be, have been established by collective agreement or otherwise.

Marginal note:Application of sections 214 to 226

• 229 (1) Sections 214 to 226 do not apply in respect of any redundant employees who are represented by a trade union if the trade union and the employer are bound by a collective agreement containing

  • (a) provisions that

    • (i) specify procedures by which any matters relating to the termination of employment in the industrial establishment at which those employees are employed may be negotiated and finally settled, or

    • (ii) are intended to minimize the impact of termination of employment on the employees represented by the trade union and to assist those employees in obtaining other employment; and

  • (b) provisions that specify that those sections do not apply in respect of the employees represented by the trade union.

• Marginal note:Idem

  (2) Sections 214 to 226 do not apply in respect of any redundant employees who are represented by a trade union if the termination of the employment of those employees is the result of technological change as defined in subsection 51(1) and sections 52, 54 and 55 apply or would, but for subsection 51(2), apply to the trade union and the employer.

DIVISION XIndividual Terminations of Employment

Marginal note:Application

229.1 This Division does not apply to an employee whose termination of employment is by way of dismissal for just cause.

Marginal note:Employer’s duty

• 230 (1) An employer who terminates the employment of an employee must give the employee

  • (a) notice in writing of the employer’s intention to terminate their employment on a date specified in the notice, at least the applicable number of weeks set out in subsection (1.1) before that date;

  • (b) wages in lieu of notice, at their regular rate of wages for their regular hours of work, for at least the applicable number of weeks set out in subsection (1.1); or

  • (c) any combination of notice and amounts of wages in lieu of notice so that the total of the number of weeks of notice in writing and the number of weeks for which wages are paid in lieu of notice is equivalent to at least the applicable number of weeks set out in subsection (1.1).

• Marginal note:Clarification

  (1.01) The employer’s obligation to give and the employee’s right to receive notice or wages in lieu of notice under subsection (1) apply whether or not the employee has a right to avail themselves of any procedure for redress under this Part, including under subsection 240(1), with respect to the termination of their employment.

• Marginal note:Notice period

  (1.1) The applicable number of weeks for the purposes of subsections (1) and (2) is

  • (a) two weeks, if the employee has completed at least three consecutive months of continuous employment with the employer;

  • (b) three weeks, if the employee has completed at least three consecutive years of continuous employment with the employer;

  • (c) four weeks, if the employee has completed at least four consecutive years of continuous employment with the employer;

  • (d) five weeks, if the employee has completed at least five consecutive years of continuous employment with the employer;

  • (e) six weeks, if the employee has completed at least six consecutive years of continuous employment with the employer;

  • (f) seven weeks, if the employee has completed at least seven consecutive years of continuous employment with the employer; and

  • (g) eight weeks, if the employee has completed at least eight consecutive years of continuous employment with the employer.

• Marginal note:Notice to trade union

  (2) If an employer is bound by a collective agreement that contains a provision authorizing an employee whose position becomes redundant to displace another employee on the basis of seniority, and the position of an employee who is so authorized becomes redundant, the employer must give at least the applicable number of weeks’ notice set out in subsection (1.1) in writing to the trade union that is a party to the collective agreement and to the employee that the employee’s position has become redundant.

• Marginal note:Rights of displaced employee

  (2.1) For greater certainty, any employee who is displaced and whose employment is terminated is entitled to and shall be given notice or wages in lieu of notice under subsection (1).

• Marginal note:Statement of benefits

  (2.2) An employer must give any employee whose employment is terminated a statement in writing that sets out their vacation benefits, wages, severance pay and any other benefits and pay arising from their employment with the employer as at the date of the statement. The statement must be given to the employee

  • (a) in the case of an employee who receives notice under paragraph (1)(a), as soon as possible, but not later than two weeks before the date of the termination of their employment;

  • (b) in the case of an employee who receives wages in lieu of notice under paragraph (1)(b), not later than the date of the termination of their employment; and

  • (c) in the case of an employee who receives a combination of notice and wages in lieu of notice under paragraph (1)(c), as soon as possible, but not later than two weeks before the date of the termination of their employment unless the period of notice is shorter, in which case, the day on which notice is given to the employee of the date of the termination of their employment.

• Marginal note:Where employer deemed to terminate employment

  (3) Except where otherwise prescribed by regulation, an employer shall, for the purposes of this Division, be deemed to have terminated the employment of an employee when the employer lays off that employee.

Marginal note:Conditions of employment

231 Where notice is given by an employer pursuant to subsection 230(1), the employer

• (a) shall not thereafter reduce the rate of wages or alter any other term or condition of employment of the employee to whom the notice was given except with the written consent of the employee; and

• (b) shall, between the time when the notice is given and the date specified therein, pay to the employee his regular rate of wages for his regular hours of work.

Marginal note:Expiration of notice

232 Where an employee to whom notice is given by his employer pursuant to subsection 230(1) continues to be employed by the employer for more than two weeks after the date specified in the notice, his employment shall not, except with the written consent of the employee, be terminated except by way of dismissal for just cause unless the employer again complies with subsection 230(1) in respect of the employee.

Marginal note:Regulations

233 The Governor in Council may make regulations

• (a) prescribing circumstances in which a lay-off of an employee shall not be deemed to be a termination of his employment by his employer; and

• (b) [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 11]

• (c) defining for the purposes of this Division the absences from employment that shall be deemed not to have interrupted continuity of employment and the expression “regular hours of work”.

Marginal note:Application of section 189

234 Section 189 applies for the purposes of this Division.

DIVISION XISeverance Pay

Marginal note:Minimum rate

• 235 (1) An employer who terminates the employment of an employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of

  • (a) two days wages at the employee’s regular rate of wages for his regular hours of work in respect of each completed year of employment that is within the term of the employee’s continuous employment by the employer, and

  • (b) five days wages at the employee’s regular rate of wages for his regular hours of work.

• Marginal note:Clarification

  (1.1) The employer’s obligation to pay and the employee’s right to receive the amount under subsection (1) apply whether or not the employee has a right to avail themselves of any procedure for redress under this Part, including under subsection 240(1), with respect to the termination of their employment.

• Marginal note:Circumstances deemed to be termination and deemed not to be termination

  (2) For the purposes of this Division,

  • (a) except where otherwise provided by regulation, an employer shall be deemed to have terminated the employment of an employee when the employer lays off that employee.

  • (b) [Repealed, 2011, c. 24, s. 167]

Marginal note:Regulations

236 The Governor in Council may make regulations for the purposes of this Division

• (a) prescribing circumstances in which a lay-off of an employee shall not be deemed to be a termination of the employee’s employment by his employer;

• (b) [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 12]

• (c) establishing methods for determining whether severance benefits provided to an employee under a plan established by an employer are equivalent to any benefits required to be paid to the employee under this Division; and

• (d) defining the absences from employment that shall be deemed not to have interrupted continuity of employment and the expression “regular hours of work”.

Marginal note:Application of section 189

237 Section 189 applies for the purposes of this Division.

DIVISION XIIGarnishment

Marginal note:Prohibition

238 No employer shall dismiss, suspend, lay off, demote or discipline an employee on the ground that garnishment proceedings may be or have been taken with respect to the employee.

DIVISION XII.1Reimbursement of Work-related Expenses

Marginal note:Entitlement

• 238.1 (1) Subject to subsection (2), an employee is entitled to and the employer shall provide reimbursement of reasonable work-related expenses.

• Marginal note:Exception

  (2) An employee is not entitled to be reimbursed for

  • (a) an expense that is ineligible under any regulation made under this Division;

  • (b) in the case of an employee who is subject to a collective agreement, an expense that the employee is required to pay in accordance with the collective agreement or any other written agreement between the trade union and the employer; or

  • (c) in the case of an employee who is not subject to a collective agreement, an expense that the employee is required to pay in accordance with any written agreement between themselves and the employer.

• Marginal note:Payment

  (3) The employer shall pay the employee any amount that is payable under this section

  • (a) in the case of an employee who is subject to a collective agreement, within the time limit set out under the collective agreement or any other written agreement between the trade union and the employer;

  • (b) in the case of an employee who is not subject to a collective agreement, within the time limit set out under a written agreement between themselves and the employer; and

  • (c) in any other case, within the time limit prescribed by regulation.

Marginal note:Regulations

238.2 The Governor in Council may make regulations for the purposes of this Division including regulations prescribing factors to consider in determining if an expense is or is not work-related and prescribing factors to consider in determining if an expense is or is not reasonable.

DIVISION XIIIMedical Leave

Marginal note:Entitlement to leave

• 239 (1) Every employee is entitled to and shall be granted a medical leave of absence from employment of up to 27 weeks as a result of

  • (a) personal illness or injury;

  • (b) organ or tissue donation;

  • (c) medical appointments during working hours; or

  • (d) quarantine.

• (1.1) [Repealed, 2021, c. 23, s. 344]

• Marginal note:Leave with pay

  (1.2) Subject to subsection (1.21) and the regulations, an employee earns, as of the first day on which this subsection applies to the employee,

  • (a) after completing 30 days of continuous employment with an employer, three days of medical leave of absence with pay; and

  • (b) following the period of 30 days referred to in paragraph (a), at the beginning of each month after completing one month of continuous employment with the employer, one day of medical leave of absence with pay.

• Marginal note:Maximum of 10 days

  (1.21) Subject to the regulations, an employee is entitled to earn up to 10 days of medical leave of absence with pay in a calendar year.

• Marginal note:Rate of wages

  (1.3) Each day of medical leave of absence with pay that an employee takes must be paid at their regular rate of wages for their normal hours of work, and that pay is for all purposes considered to be wages.

• Marginal note:Annual carry forward

  (1.4) Subject to the regulations, each day of medical leave of absence with pay that an employee does not take in a calendar year is to be carried forward to January 1 of the following calendar year and decreases, by one, the maximum number of days that can be earned in that calendar year under subsection (1.21).

• Marginal note:Division of leave with pay

  (1.5) The medical leave of absence with pay may be taken in one or more periods. The employer may require that each period of leave be of not less than one day’s duration.

• Marginal note:Certificate

  (2) The employer may, in writing and no later than 15 days after the return to work of an employee who has taken a medical leave of absence of at least five consecutive days, require the employee to provide a certificate issued by a health care practitioner certifying that the employee was incapable of working for the period of their medical leave of absence.

• Marginal note:Notice to employer

  (3) If an employee intends to take a medical leave of absence, they must give written notice to the employer of the day on which the leave is to begin and the expected duration of the leave at least four weeks before that day, unless there is a valid reason why that notice cannot be given, in which case the employee must provide the employer with written notice as soon as possible.

• Marginal note:Change — in length of leave

  (4) An employee must provide the employer with written notice of any change in the length of their medical leave of absence as soon as possible.

• Marginal note:Employment opportunities

  (5) An employee is entitled, on written request, to be informed in writing of every employment, promotion or training opportunity that arises during the period when the employee is on a medical leave of absence under this Division and for which the employee is qualified, and on receiving that request, the employer must provide the information to the employee.

• Marginal note:Prohibition

  (6) Subject to subsection (7), an employer is prohibited from dismissing, suspending, laying off, demoting or disciplining an employee because the employee intends to take or has taken a medical leave of absence or taking such an intention or absence into account in any decision to promote or train the employee.

• Marginal note:Exception

  (7) An employer may assign to a different position, with different terms and conditions of employment, any employee who, after a medical leave of absence, is unable to perform the work performed by the employee prior to the absence.

• Marginal note:Benefits continue

  (8) The pension, health and disability benefits and the seniority of an employee who is absent from work due to medical leave under this Division accumulate during the entire period of the medical leave of absence.

• Marginal note:Contributions by employee

  (9) If contributions are required from an employee in order for the employee to be entitled to a benefit referred to in subsection (8), the employee is responsible for and must, within a reasonable time, pay those contributions for the period of any medical leave of absence unless, at the commencement of the absence or within a reasonable time after, the employee notifies the employer of the employee’s intention to discontinue contributions during that period.

• Marginal note:Contributions by employer

  (10) An employer who pays contributions in respect of a benefit referred to in subsection (8) must continue to pay those contributions during an employee’s medical leave of absence in at least the same proportion as if the employee were not absent, unless the employee does not pay the employee’s contributions, if any, within a reasonable time.

• Marginal note:Failure to pay contributions

  (11) For the purposes of calculating the pension, health and disability benefits of an employee in respect of whom contributions have not been paid as required by subsections (9) and (10), the benefits do not accumulate during the medical leave of absence and employment on the employee’s return to work is deemed to be continuous with employment before the employee’s absence.

• Marginal note:Deemed continuous employment

  (12) For the purposes of calculating benefits, other than benefits referred to in subsection (8), of an employee who is absent from work due to medical leave under this Division, employment on the employee’s return to work shall be deemed to be continuous with employment before the employee’s absence.

• Marginal note:Regulations

  (13) The Governor in Council may make regulations

  • (a) defining terms for the purposes of this Division, including “regular rate of wages” and “normal hours of work”;

  • (b) modifying subsection (1.2), (1.21) or (1.4) if, in the opinion of the Governor in Council, employees or classes of employees will, despite the modification, earn periods of medical leave of absence with pay that are substantially equivalent to the period provided for in subsection (1.21); and

  • (c) providing for employees or classes of employees to earn periods of medical leave of absence with pay other than in accordance with subsection (1.2) if, in the opinion of the Governor in Council, the periods of medical leave of absence with pay are substantially equivalent to the period provided for in subsection (1.21).

• Marginal note:Application of section 189

  (14) Section 189 applies for the purposes of this Division.