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Terms of Your Employment: What Notice Are You Owed?

Is there further recourse if I am terminated and my employment contract states that I am only entitled to receive termination notice according to the terms laid out by the Employment Standards Act?

The short answer is yes. Unless there is clear language in an employment contract limiting an individual’s termination notice entitlement to only the minimums identified under the Employment Standards Act (“ESA”), an individual can claim damages for wrongful dismissal pursuant to the common law. Generally, the notice an individual is entitled to under common law is much higher than the minimums identified by the ESA.

Even where an employment contract stipulates that only minimum entitlement under the ESA is owed upon termination, to date, Courts have been reluctant to enforce these terms on wrongfully dismissed employees.

However, the recent case of Oudin v. Centre Francophone de Toronto suggests the Ontario Court of Appeal’s position may be changing where an employment contract only affords the individual minimum notice under the ESA. In Oudin, the Court of Appeal upheld the decision of Justice S.F. Dunphy by affirming that the contractual provisions in the employment contract, providing the individual with only minimum notice under the ESA, was indeed valid and enforceable.In other words, the dismissed employee was contractually barred from claiming common law damages for wrongful dismissal and was limited to the terms of their employment contract.

While it is impossible to say that Oudin will lead to the outright support for termination provisions in employment contracts by all levels of Court, it is nonetheless an influential decision not to be ignored.

If you have been dismissed from your employment and you are concerned that your employer is not treating you fairly, you should speak to our team of lawyers who have expertise in employment litigation. Contact Ferguson online for a free legal consultation or by phone at 1-800-563-6348.

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