SHARED BY McDonald HR Law
Shared on August 14, 2020
Background – Termination Provisions 101
An employee is entitled to two types of notice when terminated without cause.
- Common law notice – decided by judge in a wrongful dismissal action
- Employment Standards Act (“ESA”) Notice – basically 1 week per year of service, to a maximum of 8 weeks (additional severance pay may also be required if employer has payroll of 2.5 Million or more per year).
Common law notice is much more expensive than ESA notice. Employers don’t want to pay common law notice .They want notice to be limited to ESA notice. The courts; position is; employees are entitled to common law notice UNLESS the contract of employment specifically and unequivocally provides that the employee will ONLY get ESA notice.
If the court determines the termination provision does not equivocally oust the common law or unequivocally provide for the minimum ESA notice; then the provision will be struck down and the common law notice will prevail.