There’s an odd little wrongful dismissal decision recently decided by the Ontario Superior Court. It may be a lesson in the risk of self-represention in employment law matters, but the facts are so skimpy it’s hard to know.
See what you think, employment law students. The case is called Musoni v. Logitek (2012, Ont. S.C.J.). The EE was self-represented.
Facts: EE is hired in October 2005. In April 2006, the employer presents a written employment contract, which EE signs. That written contract includes the following notice of termination clause:
QLOGITEK or EMPLOYEE shall have the right, to terminate this employment agreement by notice in writing. A fifteen (15) days notice period will be required by the appropriate party, if agreement is terminated.
The EE is terminated without cause on March 6 2008. By my count, that’s about 2 years and 5 month’s service. EE is provided with “2 week’s notice pay”. The judge notes that the “terms of the Employment Agreement were thereby fulfilled”.
Decision: The EE doesn’t actually argue that he was entitled to more notice. Instead, the EE makes a variety of other claims that frankly I don’t understand, and which the judge dismisses anyways. Therefore, the EE loses his case, and is ordered to pay about $5000 in legal costs, which is small for a wrongful dismissal case, but nevertheless no doubt painful for the EE.
Questions Arising from These Facts:
There’s two questions that should be on the mind of employment law students arising from these facts as recounted. Can you think what they are without yet reading on?
[Imagine elevator music here while you think…]
Ok, What did you come up with? Either of these questions?
1. Are you suspicious about the Written Employment Contract being introduced 6 months after the employee began work?
Remember cases like Francis v. CIBC and Rejdak v. Fight Network?
Those cases tell us that a notice of termination clause appearing in a written contract that is introduced after an employee has already started working in accordance with a verbal contract, is not enforceable, unless the employee receives new consideration.
So we would need to know whether the EE in the Logitech case received new consideration for the employer in exchange for signing the written contract. It’s curious that there is no mention in the decision of this point, or of what the new consideration was. The Judge clearly treats the written employment contract and the notice term in it as enforceable.
2. Is a Notice of Termination Clause Requiring “15 Days’ written notice” Enforceable?
I wrote about a case called Wright v. Young and Rubicam last year. Read my summary of that case, or the case itself. That case said, in a nutshell, that a notice clause in a contract that COULD BE a violation of the Employment Standards Act is void, since it is unlawful to contract out of the ESA. And we know from the Supreme Court of Canada case called Mactinger v. HOJ Industries that when a notice of termination clause is struck down for violating the ESA minimum notice provisions, the courts substitute “reasonable notice”. Reasonable notice is almost always greater than ESA minimum notice. Almost certainly, the EE in Logitech would be entitled to more than 2 week’s pay if “reasonable notice” was the requirement.
With all of that in mind, do you think that the notice clause in the Logitech case (see above) could end up violating the ESA?
Questions for Consideration
Do you agree with the outcome of this decision? Would you want to know more facts? What facts?
Now assume that the EE made neither of the arguments I noted above, and that the facts were such that the EE could have rightly made those arguments. Do you think that a judge should be limited to deciding the issues presented to him/her? Or should a judge step in and help an unrepresented party make legal arguments that they might not be aware of?