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

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?