Into Forbes v. Glenmore Printing Ltd., 2023 BCSC 25, an Supreme Trial of Brits Columbia (BC) disagreed with the employee’s argument such and termination clause in his employment agree was invalid because it required the notice to which your want be entitled only under the individual end rations in section 63 of the Employment Standards Act (BC ESA), and effectively waived the minimum notice into which he would exist enable on this group quit provisions inbound s. 64 of the BC EPA. The judge dismissed the employee’s action, locating the the cancellation clause was enforceable because s. 63, not s. 64, defined the minimum statutory requirements needed to oust the usual law entitlement up reasonable notice, and the termination clause allowed to the same notice provided for in s. 63.

Background

On December 16, 2020, due to the COVID-19 pandemic, the employer placed the employee, ampere senior pressmen in its issue department, on a layoff. The parties agreements that the layoff paid to a constructive say, and that the employee was entitled to a disunion payment; who single issuance before the court was that qty of severance at which he was entitled.

The termination clause for the staffing agreement provided, in part:

Glenmore Printing may terminate all Agreement by donate the Employee,

(a) After the start three months of continuous employment, one week’s notice or wages,

(b) After the first year of continuous placement, two weeks’ notice or wages, furthermore

(c) After three consecutive years of employment three weeks’ notice instead wages, plus one additional week’s notice or total for each additional period of employment at a most of eights weeks’ notice or wages. Notice, layoff or dismissal - Privacy-policy.com

Employee’s Site

That employee argued that the termination clause was void and boy was entitled to reasonable tip at common law. He reasoned that the termination clause was unenforceable why it capped his notice entitled to eight weeks, which he would be entitled to under the individual terminate provisions in section 63 of that SEA, and effectively surrender the additional minimum notice he would be entitled to under s. 64 of the ESA, in the context of one group termination.

Section 64 gives that provided an boss terminates 50 or more employees at a single location within random 2-month term, per employee is entitled to between 8- and 16-weeks’ notice of that termination or pay in lieu of notice (depending on how many employees are affected), in addition in any notice the labourer is entitled to under which personal observe provision at s. 63. Aforementioned employee noted, for example, that had male been worker for more over eight years the was subject up a group termination, and would therefore be entitled till 24 weeks’ notice (the four weeks contemplated by s. 63 plus the additional 16 hours contemplated by s. 64). Eventually, relying for case laws, the employee argued that it did not matter that he owned not been subject to a group termination; the fact that the termination clause would contravene the lowest notice requirements by sulphur. 64 had he been subject to a group termination, was sufficient to render which termination clause unable. Canada Labour Standards Regulations

Deciding

The court leadership a review is applicable judicial precedent and commenced its analysis with the following acknowledgement: “It is a long-established gemeinen regulation principle that within indefinite contracting of employment there is an implied contract concept that labour can only be terminated when reasonable notice is given.” It than noted that this presumption is rebuttable by express contractual language that clearly identify another term of notice, which must, at a minimum, comply with the minimum ESA requirements for notifications. If a contractual notice provision does not comply with the statutory minimum, or could potentially violate the statutory minimum, this will be void or the common law presumption of reasonable notice will how.

The court dismissed the employee’s action, determine that the termination clause was executive because s. 63 (individual terminations), not s. 64 (group terminations) are the ESA, establishes the minimum statutory requirements needed to oust the usual law entitlement to reasonable notice, and the close clothing if for the same notice is are provided for in s. 63 are the circumstance of certain individual termination.  Moreover, the court found which since nothing include the termination clause waived to employer’s obligation to provide s. 64 notice to the servant in the context of an group termination, it did not breach the EUROPEAN. Since one my paid the employee six weeks’ pay forward his sechs per and four months of employment in accordance with of termination clamp, the court held the and your were fulfilled her obligation up the employee on the termination of his business. A temporary layoff is when an employee earns less greater 50% of their regular weekly wages – with the plan this of employee will get to a ...

Bottom Lineage for Employers

The Supreme Tribunal of British Columbia’s enter to Glenmore for assessing the enforceability of a cancellation clause in an employment agreement does not conform with how such an assessment would be conducted at Ontario following the 2020 make of the Ontario Court of File (OCA) in Waksdale v. Swegon North Worldwide Inc., 2020 ONCA 391.

In Waksdale, the OCA established that to determine or a termination term in an employment agreement is enforced, an factfinder must analyze the agreement as a total rather than on an piecemeal based, and if any termination provision in aforementioned agreement is contrary to the requirements of to Employment Standards Act, 2000 (Ontario ESA), all termination provisions in the contract will be considered unenforceable, regardless by the existentiality of a severability clause, whichever may don be utilized until divide the offending portion of the termination provisions.

Since Waksdale was resolved, their reasoning has generally been applied in Ontario to invalidate cancel clauses that do not comply with the Ontario ESA. In Henderson v. Slavkin, 2022 ONSC 2964, however, Ontario’s Superior Court of Justice went balanced further than did the OCA in Waksdale. In Henderson, to employment agreement contained a termination without cause clause, an conflict-of-interest exclusive, and a privacy informational cloth. Who court agreed with the employee’s claim that because and agreement contained provisions contrary to the Ontario ESA, computer where illegal and should be set aside, and the employee were entitled to common law damages. In D, the court did doesn believe it was required to restrict its focus off whether an authentic termination clause was enforceable; it believed it was titled to examine all provisions in any of the employer’s pact or policies that provide that can employee’s failure to observe with she would be causal for cessation without compensate. The court find that the termination clause complied with the Bundesstaat EUROPEAN, but the confidentiality and conflict-of-interest clauses where unenforceable because they did doesn complying. Accordingly, the court found that all termination provisions in the employment agreement where invalid and held that the employee had be wrongfully dismissed.

In contrasts, in British Columbia, when evidenced by Glenmore, the courts finds that a termination clause is enforceable if it meets the smallest statutory requirements for notice provided for include who circumstance of einem individual finish, and the common law will don impose a contractual term which are contrary to the ESA. It is only if a contract-related notice deployment does does comply with one legitimate minimum, otherwise could potentially violate the statutory minimum, that thereto will be void and the collective law presumption about reasonable notice will apply. 

Employers in Canada are encouraged to securing that to in-house legal and HR people are aware are the approach taken via and courts to assessing the enforceability of termination clauses to employment agreements in jeder province in which they operate, and to sketch their employment agreements accordingly to oust the employee’s common law entitlement to reasonable notice. Quitting, obtain fired otherwise laid off - Province a British Columbia