Call Us +1-555-555-555
Matthew Dewar • Jan 18, 2021

SCC denies leave to appeal in Waksdale - Employers' hopes dashed

The evanescent hopes of employers to see the decision of the Ontario Court of Appeal in Waksdale reversed by the Supreme Court of Canada have faded. Now that the leave to appeal has been denied, employers must come to grips with the reality that many of their employment agreements entered into before 2020 may be invalid. Despite the best legal craftsmanship, their employees may very well be entitled to common law reasonable notice. That is a heavy financial consequence for employers to bear, particularly in this economic climate.

 

So what can be done to limit exposure in the event of a dismissal? The fatal flaw in the Waksdale agreement was the exclusion of notice in the event of cause - it made no reference to the Employment Standards Act 2000: an employer might have cause under common law, but would still be required to pay statutory notice and severance pay. That omission was viewed as an unlawful attempt to contract out of the statute, rendering not only the clause but the entire notice provision which might be valid.

 

There are two solutions:

 

  1. The cause provision refers to the ESA and might read: “In the event of cause, you will receive no notice or pay in lieu of notice, except for the minimum provisions under the Employment Standards Act 2000";

 

  2. Get rid of discrete provision for cause and simply say: “In the event of our terminating your employment, you will receive the minimum       

       provisions of the Employment Standards Act 2000 and that shall be your full and final entitlement.” In this way, there are no exclusions.

 

Lang may yer lum reek!


Duntrune Blog

By Matt Dewar 12 Sep, 2023
Why Knicks' lawsuit against Raptors might not be a big deal 
13 Jan, 2023
When should an employee worry that their off-duty misconduct may give rise to termination for cause?
sent packing
By Michael F. Lee 26 Oct, 2021
The pandemic’s impact on Canada’s economy has resulted in job losses across a wide array of sectors. As more employees are let go, judges are continually tasked with determining whether and how the economic downturn should be taken into account in assessing employees’ termination entitlements.
Photo by Maksim Goncharenok from Pexels
By Jason Beeho 20 Sep, 2021
On August 17, 2021, Prime Minister Justin Trudeau announced that the government would implement a policy of mandatory vaccination for all federal public servants, subject only to exclusions for “legitimate medical reason[s]”. He went on to caution that, for those public service employees who refuse to be vaccinated, “there will be consequences.”
COVID Vaccine
By Jason Beeho 23 Aug, 2021
In recent days, we have seen the Federal government announce that – subject only to limited exceptions – all of its public service employees must be fully vaccinated. The Ontario provincial government quickly followed suit with a similar pronouncement, as did the City of Toronto. So has the TTC, and – as at this writing – numerous universities and four of Canada’s major banks.
By Israel Balter 11 Aug, 2021
For Ontario’s employers, the contemporary challenge of hiring staff is characterized by attracting talent that meets core competencies and rudimentary work habits and retaining them. It would be understandable that companies would seek a measure of assurance that the employees that they hire will stay with them. The costs incurred in training staff are as often as not a wasted investment in a market dominated by a mobile workforce exhibiting little fealty to their employers and aggravated by recurrent lockdowns.
Termination Letter
By Matthew Dewar 16 Mar, 2021
The Significance of the Termination Letter: You will be bound by what you put it writing regardless of the seriousness of the misconduct.
Ontario employers can breathe a little easier today in assuring that essential staff show up to work
By Israel Balter 14 Jan, 2021
Ontario employers can breathe a little easier today in assuring that essential staff show up to work.
Seeking a settlement from cash strapped companies could be futile in the midst of a pandemic.
By Ewan Christie 31 Dec, 2020
Seeking a settlement from cash strapped companies could be futile in the midst of a pandemic.
fired; terminated; terminated without cause; just cause; cause for discharge
By Ewan Christie 28 Dec, 2020
Steps employers should take to reduce risk and treat employees respectfully.
More Posts
Share by: