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

If an Employer Offers Inadequate Notice of Termination, Must the Employee Work the Notice Period?

by David Doorey September 20, 2012
written by David Doorey September 20, 2012

The Ontario Superior Court of Justice issued a wrongful dismissal decision this week that shows yet again that it is not enough for employers to provide statutory minimum notice of termination when the contract requires ‘reasonable notice’.  The case is called Dechene v. Dr. Khurrun Ashraf Dentistry.
Key Facts
An employee with approximately 6 year’s service as a dental hygienist was dismissed after she refused to sign a new written employment contract that, among other things, required her to agree that the employer could schedule her to work up to 48 hours per week.  Her existing verbal contract required only a 32 hour work week.  An HR consultant told her that if she did not sign the new contract, then he would recommend the employer fire her. (Time to fire the HR consultant, I’d think!)  The employee refused to sign, and the employer then gave her a termination letter that provided for 5 week’s working notice.  The employee was very upset by this, and she went home, feeling unable to treat patients in her state.   The next day, she called the employer and offered to return to work the 5 weeks, but the employer indicated that a replacement was already hired.  The employee sued for wrongful dismissal.
Issues:

1.   Was the employer wrongfully dismissed?

2.   If so, should the 5 week’s notice offered to the employee be deducted from the period of reasonable notice?

Decision
The Ontario Superior Court upheld a decision of Small Claims Court judge, who found that the employee had been wrongfully dismissed because the 5 week’s notice was substantially less than required by the contract’s requirement for ‘reasonable notice’.  The judge fixed the period of reasonable notice at 6 months.
So here we see yet another situation in which an employer attempts to get away with offering the ESA minimum period of notice when the contract requires a much longer period of  ‘reasonable notice’.   Employers must do more than comply with the ESA’s minimum obligations.  They must also comply with the employment contract. Think about this way:  The presumption in a nonunion employment situation is that the contract requires the employer to provide the employee with ‘reasonable notice’ of termination.  That presumption can be rebutted by a clear, expressed contract term that indicates that some other period of notice is required, but that other period of notice can not be less than the ESA minimum.  Setting that floor is all that the ESA does.  Most employment contract require greater periods of notice than just the ESA minimum.
The judges also found that the 5 week’s notice offered to the employee should not be deducted from the 6 month’s reasonable notice when calculating the damages.  The employer relied on a B.C. Court of Appeal decision called Giza v. Sechelt School Bus Service, where the employer’s inadequate offer of the statutory minimum notice period of 5 weeks was deducted from the period of reasonable notice required by the contract (6 months) after the employee quit, rather than work the 5 weeks.  In Giza, the employer left open the opportunity for the employee to return and work the notice period.  In Dechene, the employer filled the employee’s job immediately, so that the employee had no opportunity to work during the 5 week notice period.
Moral of the Story
When an employment contract does not state a specific amount of notice required for the employer to terminate the employer, the employer must give ‘reasonable notice’.  “Reasonable notice’ is calculated by the court based on a number of factors, most notably length of service, age of the employee, and type of job performed.  Reasonable notice is almost always considerably longer than the statutory minimum amount of notice required in employment standards legislation.
An employer can be in compliance with the ESA notice requirements, but still be in breach of the employment contract requirement to give ‘reasonable notice’.
If an employer offers inadequate notice, and an employee fails to work out that notice period:  (1) the employee can still sue for wrongful dismissal to recover damages equal to ‘reasonable notice’;  but (2) the damages for the period of the notice offered by the employer may be deducted from the period of reasonable notice when the opportunity to work out the notice period was given to the employee and the employee refused to work.

Do you agree with the Court’s reasoning in this case?

0 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
The Agenda Will Debate Conservative's Labour Law Reform Ideas this Wednesday Night
next post
Doorey's "Beginner's Guide to the Charter and Work Law", Version 2.0

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
CanLawWorkForumCLWF@CanLawWorkForum·
19 Feb

Tenants have associations, but landlords can't just ignore them. Is Landlord Tenant Law the next frontier in Freedom of Association litigation?

@TheLawofWork considers:

“The Striking Absence of Freedom of Association in Landlord and Tenant Law”

https://lawofwork.ca/the-striking-absence-of-freedom-of-association-in-landlord-and-tenant-law/

Reply on Twitter 1362821027458334724Retweet on Twitter 13628210274583347243Like on Twitter 13628210274583347244Twitter 1362821027458334724
CanLawWorkForumCLWF@CanLawWorkForum·
19 Feb

Tenants have associations, but landlords can't just ignore them. Is Landlord Tenant Law the next frontier in Freedom of Association litigation?

@TheLawofWork considers:

“The Striking Absence of Freedom of Association in Landlord and Tenant Law”

https://lawofwork.ca/the-striking-absence-of-freedom-of-association-in-landlord-and-tenant-law/

Reply on Twitter 1362821027458334724Retweet on Twitter 13628210274583347243Like on Twitter 13628210274583347244Twitter 1362821027458334724
CanLawWorkForumCLWF@CanLawWorkForum·
15 Feb

New post from @TheLawofWork examining unfair labor practice complaint filed by UFCW vs @Uber in Toronto, complaint attached. Thanks to @WrightHenryLLP for permission to post:

"Real Pleadings: Has Uber Created a New Service to Avoid Unionization?"

https://lawofwork.ca/uberblackulp/

Reply on Twitter 1361345482510000131Retweet on Twitter 1361345482510000131Like on Twitter 1361345482510000131Twitter 1361345482510000131
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.