Canadian Law of Work Forum (CLWF)
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
  • Home
  • About
    • Professor David Doorey
  • Guest Contributors
  • Useful Links
    • Archive
  • Submissions
  • Student Blog Initiative
Canadian Law of Work Forum (CLWF)
Law of Work Archive

Musoni v. Logitek: Was This Notice of Termination Clause Enforceable?

by David Doorey January 13, 2013
written by David Doorey January 13, 2013

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?

1 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is the Director of the School of HRM at York and Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and on the Advisory Board of the Osgoode Certificate program in Labour Law. He is a Senior Research Associate at Harvard Law School’s Labor and Worklife Program and a member of the International Advisory Committee on Harvard University’s Clean Slate Project, which is re-imaging labor law for the 21st century

Leave a Comment Cancel Reply

Save my name, email, and website in this browser for the next time I comment.

previous post
Is a "Day of Protest" an Unlawful Strike?
next post
Can an Employer Prohibit Tattoos and Piercings?

You may also like

A Cross Country Update on the Card-Check versus...

October 3, 2018

A Successful Strike Vote is All That Stands...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Putin Invites Trump to Moscow for Second Meeting...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 218 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

CLWFFollow

CLWF
Retweet on TwitterCLWF Retweeted
RSandillRicha Sandill@RSandill·
23h

@SCLSclinic and I were so fortunate to represent this client last year. I am thrilled that this decision brings more clarity for family status accommodations rights amidst a pandemic that has tested parents, caregivers, and families like never before. https://twitter.com/CanLawWorkForum/status/1364605259071561730

CLWF@CanLawWorkForum

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364627677785821185Retweet on Twitter 13646276777858211851Like on Twitter 13646276777858211853Twitter 1364627677785821185
Retweet on TwitterCLWF Retweeted
TheLawofWorkDavid J. Doorey@TheLawofWork·
23h

Here's my latest in @jacobinmag.

If Ontario's labor laws applied in Alabama, the Amazon vote would have been held months ago so workers could get back to their jobs. Instead, the NLRA permits Amazon to conduct a months' long onslaught of anti-union propaganda. https://twitter.com/jacobinmag/status/1364613560425275392

Jacobin@jacobinmag

Amazon workers in Alabama are voting on whether to unionize, but the company is bombarding them with anti-union propaganda. In Canada, by contrast, votes are held quickly, making it harder for companies to stack the deck — a model that can work in the US. http://jacobinmag.com/2021/02/amazon-alabama-canada-labor-law-union-vote

Reply on Twitter 1364623976174092316Retweet on Twitter 13646239761740923168Like on Twitter 136462397617409231613Twitter 1364623976174092316
CanLawWorkForumCLWF@CanLawWorkForum·
24 Feb

New from @RSandill (counsel for applicant), discussing important new "family status" discrimination decision from OHRT:

"Kovintharajah v. Paragon Linen & Laundry: When Failure to Accommodate Child Care Needs is “Family Status” Discrimination"

https://lawofwork.ca/13360-2/

Reply on Twitter 1364605259071561730Retweet on Twitter 13646052590715617304Like on Twitter 13646052590715617304Twitter 1364605259071561730
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.