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6 | September 12, 2018 Canadian HR Reporter, a Thomson Reuters business 2018 Cases and Trends so required as at the time of a non-cause ter- mination." e clause also clarified that if the amount she received in such a termination were less that the legislative entitlement, she would be given "notice, severance pay, and any other payment required by the relevant legislation in force at the time of the termina- tion." e contract also included a confiden- tiality clause. Burton received regular salary increases over the years and in 2010 she was promoted to law clerk. Around that same time, AMR instituted a salary cap of $70,000 per year for its law clerks, though they could earn a per- formance bonus by exceeding billable hours targets during the year. AMR also provided additional bonuses for some employees who were up against the salary cap, though this stopped after 2012. Burton achieved the maximum salary for law clerks on May 1, 2012, and she received bonuses between $5,000 and $16,000 from 2011 to 2014. In March 2015, Burton met with AMR's office manager to discuss concerns she had over the salary cap. She asked if AMR was considering increasing the maximum sal- ary for law clerks, and the office manager replied, "do your homework and see what others are paid." Burton proceeded to discuss the salary is- sue with other law clerks at AMR — some of whom contacted law clerks at other firms to find out what they were earning — and a partner at the firm. On March 20, Burton and the other AMR law clerks shared their findings and then met with the office man- ager and another partner at the firm. Tense performance review meeting One month later, on April 21, Burton met with the office manager and AMR's man- aging partner for her annual performance review. However, the managing partner wanted to discuss rumours he had heard that law clerks were disclosing information about their salaries to each other, which he believed violated the confidentiality clause in their employment contracts. Burton testified that the managing partner confronted her aggressively about the salary sharing and wouldn't allow her to explain the situation. She said she felt threatened and didn't say anything else about it. e man- aging partner felt Burton had a "confronta- tional attitude" when he asked her about the salaries, including raising her voice and lean- ing over the table. When she refused to talk about it, he ended the performance review meeting. Following the meeting, Burton emailed the office manager, managing partner, and the partner with whom she had discussed the matter earlier. She explained that she had been told to "do your homework" and find out what others were paid. However, the managing partner insisted she had violated the confidentiality clause in her employ- ment contract. He said her performance re- view had ended early because of her refusal to answer questions and her attitude, and she would have to remedy those issues in order to continue the review. Burton didn't respond. e next day, April 22, the managing part- ner decided that because of Burton's conduct at the performance review meeting and her failure to apologize or acknowledge her be- haviour, her employment should be termi- nated on a without-cause basis. AMR pro- vided Burton with eight weeks' pay in lieu of notice, 12-and-one-third weeks' severance pay, her 2014 performance bonus, unused vacation pay, and four per cent termination pay as required by the Ontario Employment Standards Act (ESA) — totalling $39,372.92. e firm also informed Burton it would con- tinue to provide her with all her benefits for eight weeks until June 24, 2015 — though it ended up paying for her benefits until Janu- ary 2016. Burton sued for wrongful dismissal, claiming the termination clause in her con- tract was unenforceable as it failed to comply with the minimum requirements under the ESA — the clause didn't provide for benefit plan continuation during the notice period — and was unconscionable. e court found that the language of Bur- ton's termination clause was "sufficiently clear" to displace her common law notice entitlement, as it indicated she was entitled to payments required by relevant legislation that was in force. In addition, the reference to "any other payment required by relevant legislation" was broad enough to include benefits continuation during the notice pe- riod. ere was also no language expressly excluding such payments, the court said. e court also pointed to the wording in the termination clause that ensured Burton would receive all of the amounts to which she was entitled under the ESA — "if the amounts which you would receive… are less than the amounts to which you would be entitled un- der the (ESA), as amended or any successor legislation, then you shall be entitled to… any other payment required by the relevant legis- lation in force at the time of the termination." ere was no doubt of the intention of the clause regarding legal requirements for ter- mination pay, the court said. e court also noted that AMR met its le- gal obligation by providing eight weeks' pay in lieu of notice, 12-and-one-third weeks' severance pay, and paying for her benefits beyond the eight-week notice period. As for unconscionability, the court said there were four elements needed to make an employment contract unconscionable: a grossly unfair and improvident transac- tion, a lack of independent legal advice for the employee, an overwhelming imbalance in bargaining power, and one party know- ingly taking advantage of the other. Howev- er, the court found that a termination clause requiring an employer to provide the em- ployee with her legal entitlements was not "grossly unfair or improvident," so the first element wasn't met. is made the termina- tion clause in Burton's contract enforceable, the court said. Since AMR terminated Burton's employ- ment without cause — and met its contrac- tual obligations for without-cause termi- nation — it didn't matter whether Burton's alleged breach of the confidentiality provi- sions was just cause for dismissal. e court noted that had AMR wrongfully dismissed Burton, she would have been entitled to nine months' pay in lieu of notice plus $10,000 for the lost opportunity to earn a 2015 bonus during the nine-month notice period. For more information see: • Burton v. Aronovitch McCauley Rollo LLP, 2018 CarswellOnt 13595 (Ont. S.C.J.). Requirement to pay legal entitlements not unfair « from FIRED WORKER on page 1 CREDIT: BILLION PHOTOS/SHUTTERSTOCK

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