chap 15

• Dismissal without cause


  Employers don't need just cause to dismiss a non-unionized employee, provided the dismissal does not violate a statute such as the Human Rights Code
• Termination of employment


  Lawful if the employer provides (sufficient) notice of the termination, or (sufficient) payment in lieu of such notice
• Purpose of termination notice

  To give the employee time to find comparable employment while still receiving an employment income
• A wrongfully dismissed employee has no right to reinstatement of employment under the common law of wrongful dismissal (unlike unionized employees who are terminated without cause under a collective agreement)
• Remedy for a non-unionized employee on wrongful dismissal

  Monetary damages
• Determining common law notice period

  Consider the employment contract, termination provisions in the ESA, and common law notice
• Common law notice


  • Applies when the termination provision is unenforceable or the employment contract is "oral" and the presumption of common law notice has not been rebutted
• An employer's separation package must meet the statutory minimum requirements of the ESA
• Reasonable notice standard


  Larger than what is provided for under the ESA, and may apply in addition to the minimum statutory standards for notice of termination and severance pay
• Dismissal of a non-unionized employee for economic reasons does NOT AMOUNT TO JUST CAUSE
• Bardal factors for determining reasonable notice


  • Length of service, character of employment, the employee's age, the availability of similar employment
• Cases on reasonable notice

  • Love v Acuity, Hussain v Suzuki Canada Ltd, Vist v Best Theratronics, Di Tomaso v Crown Metal Packaging Canada, Bain v ICBC, Kotecha v ULC
• Secondary factors for determination of common law notice

  • Inducement, employee's pregnancy, employee's poor health, employee's poor language skills, employer's failure to provide the employee with a letter of reference, presence of a non-competition clause in the employment contract, employer's "ballpark damages" assessment
• One of these secondary factors has been rejected by the courts as a relevant factor to determining reasonable notice
• Working notice of termination

  Better for an employee to use in circumstances where the employee may not take it "personally" (e.g., a mass layoff)
• Employees who work during the notice period should be given generous opportunity to search for new employment during working hours
• Frustration of the employment contract

  Considered to be a dismissal without cause, but an employee's severance entitlements will be limited to termination amounts set out in the ESA
• Factors considered in deciding whether an employment contract is frustrated due to an employee's physical incapacity

  • Terms of the contract, including the provisions relating to sick pay, how long the contract was anticipated to last, nature of the employment, nature of the illness, employment history
• Cases on frustration of employment contract

  • Demuynck v Agents Information Services Inc., Naccarato v Costco
• Structuring a severance package

  Offering a lump sum payment, offering salary continuance, providing benefit continuation during the statutory notice period
• Employees who are entitled to statutory termination and severance pay under the ESA cannot be required to sign a release before receiving their minimum statutory entitlements
• Salary continuance packages should require an employee to sign a document acknowledging that they are being provided with a greater termination benefit than provided for under the ESA and that the salary continuance payments are inclusive of any statutory notice and severance entitlements that the employee is entitled to
• Duty to mitigate


  Applies to common law notice pay, applies to statutory severance under the ESA, and applies in the case of fixed termination damages
• Factors in determining if an employee must return to the job they were fired from to mitigate damages

  Comparability of the offer in terms of benefits, location, and salary, acrimony between employer and employee, timing of the offer, whether the offer was made in writing