Canadian Employment Law Today

Canadian HR Reporter, 2019 would have likely been found to be valid and enforceable and Kutcher would have been able to rely on the 2011 agreement and limit his notice to the respondent to ESA only. Whether he was ill-advised or extraordinarily thrifty with his finances, we do not know. A clear resignation is decision is interesting with respect to the meaning of a resignation. Although the respondent never actually ceased working for Kutcher, the Court of Appeal declined to find a continuous period of employ- ment from 1993 to 2012. e court essen- tially determined that where the employee resigns and retracts her resignation, an employer may re-hire her on new terms — even when she is taken back on identical terms to her previous employment — that are valid and binding. e consideration for the new employment was the offer in 2005 by the respondent to Kutcher to be- come employed and Kutcher's acceptance of that offer. At that point, new employ- ment began, which effectively broke the chain of employment so that the respon- dent's previous service was of no effect on her new employment. No other new consideration was required. e result was the respondent's notice being based on the period commencing the day her new employment began on July 1, 2005 until Kutcher terminated her employment in December 2012. Given the Court of Ap- peal decision, it can likely be concluded that had Kutcher agreed to recognize the respondent's initial start date for an an- niversary gift or waive the probationary period for the purpose of calculating va- cation, this would have not impacted the significance of the resignation nor would the period of employment prior to the res- ignation be considered in determining the amount of notice to provide. Lessons for employers If an employer is restructuring its busi- ness and wishes its employees to sign new employment agreements, care should be exercised to ensure proper consideration is provided in the agreement so that it is valid and the ESA clause is enforceable. e issue of consideration for signing new agreements should be examined to ascertain that the consideration is suf- ficient and not something that the em- ployee would otherwise expect or receive. It is comforting to know that adequate consideration will make an agreement valid and termination clause enforceable, which may negate an employee's previous years of service for the purpose of calcu- lating the appropriate amount of notice to provide to an employee. If an employee resigns and later wishes to be rehired, the existence of a new employ- ment contract may result in the employee's previous service not being considered. It is recommended that employers have an employee sign a new employment agree - ment containing an enforceable termination clause and also provide additional consider- ation to prevent an argument that the agree- ment fails due to no or inadequate consid- eration. e notice of resignation should always be accepted in writing. For more information see: • eberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Cor- poration), 2019 ONCA 469 (Ont. C.A.). August 14, 2019 | Canadian Employment Law Today ABOUT THE AUTHOR Ronald S. Minken Ronald S. Minken is a senior lawyer and mediator at Minken Employment Lawyers, an employment law boutique in Markham, Ont. Minken and his firm can be reached by visiting www.MinkenEmploymentLawyers.ca. CREDIT: HXDBZXY/SHUTTERSTOCK

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