Canadian Employment Law Today

10 | May 24, 2017 Canadian HR Reporter, a Thomson Reuters business 2017 More Cases STAY ON TOP OF THE LATEST TRENDS IN HR VISIT HRREPORTER.COM TODAY Featuring a blend of breaking news, in-depth analysis and opinion from industry experts, hrreporter.com is a go-to resource for the human resources community. Same job, same location, unbroken service A TERMINATED Ontario worker is en- titled to notice appropriate for the 16 years he worked in his job and at his location, not the four years since his current employer took over operations, the Ontario Superior Court of Justice has ruled. Daniel Vinette, 58, was a perfect binder and saddle stitcher for Ottawa-based Na- tional Printers Incorporated. He was hired in November 1999. In 2011, another printing company called Delta Printing began operating out of the same location. Later that year, National Printing became insolvent, but Vinette con- tinued to do his binding and saddle stitch- ing in National's location until August 2011, when Delta offered him employment in the same capacity. Delta's offer included a written employ- ment contract that reduced Vinette's hourly rate and contained a termination provision that provided for notice of termination and severance pay "mandated by" the Ontario Employment Standards Act, 2000, including benefits, for termination without cause. Vinette signed the employment contract and continued working uninterrupted in the same position but at the new lower rate. Vinette's job remained unchanged, per- forming the same duties at the same work site for the next four years. On Sept. 9, 2015, Delta terminated his employment. He was paid eight weeks' salary in lieu of notice. Vinette sued for wrongful dismissal, argu- ing Delta didn't give him the notice to which he was entitled. While Delta considered him an employee only since he signed the em- ployment contract in September 2011, Vi- nette said there was no break in his employ- ment and he was in fact a 16-year employee deserving of more notice. e court found that the employment contract's wording didn't exclude common law notice damages, as it stated "pay in lieu of that notice and severance pay, if applicable, mandated by the ESA." e use of the word "and" made it appear that employment stan- dards benefits were in addition to pay in lieu of notice, the court said. "As a matter of law, if an employer wishes an employee to contract out of rights that ac- crue at common law, the words of limitation must be clear and the significance of the pro- vision must be made clear," said the court. e court noted that Vinette understood his employer was changing from National Printers to Delta with a reduction in pay, something he had no choice but to accept if he wanted to keep his job. However, there was no evidence Delta told him he would be treated as a new hire. Since everything about his job except his pay remained the same, it made sense he would believe his employ- ment was continuing, said the court. e court agreed with the British Colum- bia Court of Appeal's statement in a past de- cision that "where there is a change in own- ership and the new employer does not advise the employees they will not be credited for years of past service, recognition of that ser- vice is deemed to be part of the contract of employment." In this case, Vinette experi- enced no change in his job duties or location, and Delta provided no evidence on its rela- tionship with National Printing or the tran- sition at the location where Vinette worked. As a result, the court determined it was ap- propriate to treat Vinette as an employee with 16 years of uninterrupted service. e court considered Vinette's relatively advanced age, his years of experience, and the fact the industry was in decline, and determined he was entitled to 15 months' notice. Delta was ordered to pay Vinette the equivalent of 15 months' pay and benefits. See Vinette v. Delta Printing Ltd., 2017 Car- swellOnt 3797 (Ont. S.C.J.).

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