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ON: Statute of limitations on termination pay, vacation pay

Expert: CO Staff

Sharon asked:

The high end Muskoka based interior design store I worked for closed the doors of its Collingwood location. For the first time in the 3 1/2 years that I worked there I received vacation pay (from Jan 08 until June 08) when the business ceased operations at this location. I didn't realize that fully commissioned sales consultants such as myself were even entitled to this. Am I able to collect for the past years? Any holidays I did take were without compensation - earnings were strictly that = earned commission.

Second question - the owners papered the windows, moved everything out and the next day I received a registered letter giving me notice that I need not attend the store after two more weeks - can I collect payment in leiu of notice after 8 months? I have just finished delivering the very last piece of furniture - between clients houses not being ready and furniture taking so long I now have nothing to lose in pressuring my previous employer.

CO Staff answered:

First, this answer assumes that the company you worked for was not unionized and that you were an employee, not an independent contractor.

If, as an employee, your job was terminated due to the store closure, you are entitled to the vacation pay you have earned but not yet been paid. Here is a government document that explains this:

The issue of termination pay is explained well in these two documents:

There are a few issues to consider.

First, you may be deemed to be in the construction industry, since you may be going into people's homes to consult on things like colour choices. The construction industry is exempt from the obligations of the ESA, so it's possible that you may not be entitled to termination pay.

Second, there are statute of limitations for both vacation pay and termination pay. The first is 12 months, so it sounds like you are still within the timeframe to file a claim for any outstanding vacation pay owed. The second is 6 months for the termination pay, which may have passed given the timeline you outlined in your email.

Given the complexities of your situation, I would recommend that you contact the Employment Standards office. They can ask questions to better understand whether you would be treated as a construction worker. They can also advise you on filing a claim, which you can now do online.

You can call the centre using this toll free number:

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