Employer's Failure To Comply With Termination Provision Renders It Unenforceable

Bottom Line

The Ontario Superior Court of Justice held that an employer's failure to abide by the very termination provision it drafted amounted to a repudiation of the employment contract. Furthermore, following the reasoning set out in the Ontario Court of Appeal's recent decision in Waksdale v Swegon North America, 2020 ONCA 391 ("Waksdale"), the Court determined that the termination provision was void for non-compliance with the Employment Standards Act, 2000 ("ESA") in any event. As a result, the employer was unable to rely on the termination provision to limit its liability, and was ordered to pay common law reasonable notice damages.

Background

The Plaintiff's employment with the Defendant employer was subject to a written employment contract. The contract provided that, in the event that Plaintiff was terminated from her employment without just cause, the Employer would provide the Plaintiff with her minimum statutory entitlements under the ESA plus