Employment Law: Questions and Answers

1. "My severance offer expires in 3 days and I need to accept or I will lose my rights to a package."

False. Your employment rights do not go away just because the offer expires. This is a pressure tactic commonly used by employers usually to disenfranchise an employee out of a significantly larger severance owed, whether because the employer does not know what is owed or does know but is hoping you don't. Without obtaining a release the problem does not go away for the employer if you do not sign. There is no rush. It is always better to speak to an employment lawyer before signing anything.

2. "The common law entitlement is one month per year of service".

False. This is a common misconception. Applying the factors in Bardal v. Global & Mail Ltd., the court will look at such factors as age, length of service, character of employment, and ability to find similar, comparable employment as they apply to your specific case. In some cases, an individual might get 2 or 3 months per year of service, or even more. A forklift driver might be able to get a job next month doing the same thing, but it will likely take longer for a hotel manager managing a national chain to find similar employment.

3. "I was only employed for 6 months, therefore my notice period is likely too short and not worth pursuing."

False. Shorter periods of employment yield longer notice periods relative to the time employed, all else equal. Reason: the fact that you were employed for a shorter period of time does not necessarily mean it will be any easier to find a comparable job. It would not be unusual for a CEO of a large corporation employed for a 1 year period to obtain 12 months pay-in-lieu-of-notice. A mid-level analyst with 6 months service might well be looking at 2 to 4 months, although the exact amount of notice will depend on a more detailed analysis of the facts.

4. "I am about to start a new job, and there is a lengthy contract - this probably leaves me more protected."

False. Unless you are a highly senior corporate executive with extraordinary negotiating power and able to get a "golden handshake" or severance package attached to your employment contract as a "schedule", the most protection you can ever get is by a simple handshake to form the employment relationship. The protections at law are almost always better than the protections in an employment contract, so the lengthier the employment contract, the more the employer is likely protecting itself. Apart from a handshake, I like shorter employment contracts, and ideally, no termination clause at all, as far as what is more protective of employees.

5. "There is a termination clause in the employment contract that limits my entitlements to the statutory minimums and/or ousts the common law. Therefore I am not entitled to more than the Employment Standards Act minimums."

This is very likely to be false. If there is a termination clause that purports to oust the common law, or purports to limit your entitlements to the statutory minimums, it is important to know that termination clauses are a highly litigious and evolving area of the law, and in many many instances the courts have found the termination clause unenforceable, and are increasingly finding them unenforceable, and simply applying the common law notice entitlement. Termination clauses that purport to oust the common law are far more often than not unenforceable. In light of recent jurisprudence such as Waksdale v. Swegon North America Inc. 2020 ONCA 391, and Sewell v. Provincial Fruit Co. Limited 2020 ONSC 4406, if the for-cause termination provision is not compliant with the Employment Standards Act, the entire termination provisions inclusive of without-cause or for-cause will be unenforceable, regardless of the fact that an employee might have been terminated without cause. The court also held in Waksdale that the termination clause will not be saved by invoking a 'severability clause' in the employment contract. This means, if your employment contract predates Waksdale, there is a ninety-something percent chance it is unenforceable, and common law notice will apply. Suffice to say, assumptions should not be made on this. It is best to have your employment contract and termination provision reviewed by a lawyer. If you have an employment-related question, please do not hesitate to reach out for a consultation: colin@cuttresslaw.com