An employer who dismisses an employee without cause is obliged by law to provide notice of termination which must include either a period of working notice after which the termination will take effect or pay in lieu of such notice if termination is to take effect immediately. The purpose of such notice is to alert the employee that his employment is either at an end or fast approaching so that he/she can begin to look for new employment and as it were, land back on his feet while income is still coming in.
The minimum notice period to which an employee is entitled is established by the Employment Standards Act (the “Act”) and will vary from one to eight weeks or the equivalent pay in lieu depending upon the employee’s length of service with the employer. An individual who, on the other hand, brings a civil claim for wrongful dismissal to the Courts, may expect, if successful, an award for reasonable notice which exceeds his/her statutory entitlements. Depending upon an employee’s age, position, length of service, availability of alternate employment, and the circumstances surrounding the termination, he/she can obtain a notice award of as much of 24 months’ pay and in some cases, even more.
Does this mean that all employees who are wrongfully dismissed, are entitled to reasonable notice? The answer is: many but not all. Where there is no written contract, the employment relationship is governed by an oral agreement between the parties. The Courts have recognized an implied term in such agreements providing for reasonable notice upon termination.
The rights of unionized employees regarding notice, on the other hand, are strictly governed by the terms of their collective agreement. These terms may be or less generous than what the Courts would have awarded as reasonable notice. In the non-union workplace, where there is a written agreement which contains a provision or provisions concerning termination, the parties may have agreed to limit or restrict an employee’s right to notice with the effect that an employee may have given up his/her right to reasonable notice. Where the employer has done its homework, it may be difficult if not impossible to overturn such a contract. Such agreements however, will be enforceable if and only if,
(1) The notice agreed to, satisfies the minimum entitlements under the Act; and
(2) The provisions regarding termination are clear and unambiguous.
The difference between reasonable notice and employment standards minimums can be significant and even life altering. Employers rarely provide written contract terms which are more favourable than the employee’s common law right to reasonable notice. Typically, employees will be asked to sign a contract of employment which restricts the right to notice without understanding what they are giving up and without having the opportunity to consult with a lawyer first. It is always in the employee’s best interest to request an opportunity to obtain legal advice before signing such an agreement. Armed with the information provided by counsel, the individual may be able to negotiate the contract terms dealing with termination. Where the employer refuses a request to obtain legal advice, the employee may be able to rely on such conduct to have the termination provisions of the contract set aside should the issue of notice later be disputed. At the very least, with proper legal advise, the employee will know what he/she is getting into before making the commitment which the employment relationship necessarily involves.
Marvin A. Gorodensky has over 16 years experience in Employment Law. He can be reached at (416) 323-9395, or at www.dismissed.ca.