Canadian Employment Law Today - sample

6 | October 12, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 Cases and Trends/Ask an Expert be in accordance with the provincial em- ployment standards legislation." e con- tract also recognized his seniority from his service under the previous employer. Bellini was given the opportunity to get independent legal advice and he signed the contract on July 10, 2013, officially starting work for Ausenco 12 days later. On June 17, 2015, Ausenco terminated Bellini's employment due to a lack of work available. e company paid him all out- standing wages and benefits, as well as an additional two weeks' salary and health and dental coverage until the end of the month in lieu of notice. Bellini sued for wrongful dismissal, seek- ing damages for breach of his employment contract. He argued that the contract's ter- mination provision did not eliminate his right to common law reasonable notice, so he was entitled to more than just the mini- mum notice under the Nova Scotia Labour Standards Code — which was two weeks for a period of employment "two years or more but less than five years." Contracts must specifically exclude common law notice e court noted that it had been "well-es- tablished" that indefinite employment con- tracts required reasonable notice for dis- missal without cause if they didn't contain express language to the contrary. It pointed to the Ontario Court of Appeal's 2012 deci- sion of Bowes v. Goss Power Products Ltd., that stated: "ere is a presumption that unless there is an agreement with express language to the contrary, an employee is en- titled to reasonable notice of termination." Employers and employees can agree to substitute a fixed period of notice displacing the common law reasonable notice period — as long as it doesn't violate the statutory minimum — but this must be clearly stated in the contract, said the court. Ausenco argued the termination provi- sion's existence indicated an intention to contract out of any common law reasonable notice requirement for the minimum out- lined in the provincial employment standards legislation, as stated in the contract. e company pointed out that the code stipulates that "nothing in this act affects the rights or benefits of an employee under any law, cus- tom, contract or arrangement that are more favourable to him than his rights or benefits under the act," as long as the minimums were maintained as the floor for such entitlements. e company argued there were no specific terms in Bellini's contract providing for any- thing greater than the minimum. However, the court found there was ambiguity in the termination provision of Bellini's employment contract, which left the door open for common law notice en- titlement. "e provision in this case is at best am- biguous as to whether the parties intended the statutory minimum to apply, or simply whether the applicable notice would be con- sistent with the legislation," said the court. "It would not be difficult for an employer to draft a termination clause that leaves no doubt as to the parties' intention to oust common law notice. is language does not do that." e court determined it could not apply an interpretation to contractual language that didn't specifically describe it — such as replacing Bellini's common law notice entitlement with the legislative minimum notice. As a result, since the contract didn't clearly state the intention of the parties was to forgo common law notice, Bellini still had an entitlement to reasonable notice under common law standards. Having established the reasonable no- tice entitlement was still in effect, the court looked at the Bardal factors to determine the amount of entitlement. Bellini was em- ployed with Ausenco and its predecessor for more than three years. His position didn't have executive or managerial responsibili- ties, but as a senior engineer he offered guid- ance to junior engineers. Bellini was over 60 years old when he was dismissed but had a history of short-term employment and a "highly-transferable skill set." However, the court found he shouldn't be expected to relocate at his age. e court determined Bellini was entitled to six months' notice. Ausenco was ordered to provide Bellini with compensation and benefits equal to six months' work. For more information see: • Bellini v. Ausenco Engineering Alberta Inc., 2016 CarswellNS 735 (N.S. S.C.). • Bowes v. Goss Power Products Ltd., 2012 CarswellOnt 7721 (Ont. C.A.). Clause didn't state common law notice to be replaced « from AMBIGUOUS on page 1 WEBINARS Interested in learning about employment law issues directly from the experts? Check out the Carswell Professional Development Centre's live and on-demand webinars discussing topics such as Ontario's new sexual violence and harassment legislation, compliance with the Temporary Foreign Worker Program, managing hidden disabilities in the workplace, and workplace harassment. To view the webinar catalogue, visit cpdcentre.ca/hrreporter. "The provision in this case is at best ambiguous as to whether the parties intended the statutory minimum to apply, or simply whether the applicable notice would be consistent with the legislation."

• Cover