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CONTRACT OF EMPLOYMENT - Express terms - Severance pay

Thursday, July 04, 2019 @ 9:00 AM  

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Appeal by the plaintiff from a decision finding he was not entitled to common law reasonable notice. The appellant worked for the respondent since 2002 and for the respondent’s predecessor since 1986. In 2006, the appellant increased his hours of work to 40 hours per week. His employment agreement was amended accordingly and provided that in the case of termination of employment without cause, notice of termination would be provided in accordance with the Employment Standards Act. In 2013, the appellant transitioned to part-time employment. The appellant was required to resign and sign a new offer of employment. There was no mention in the offer letter of any severance pay obligation or entitlement upon termination from employment. In 2016, the respondent terminated the appellant’s employment without cause. The respondent provided him with statutory notice but did not pay severance. The appellant sued for wrongful dismissal damages based on the common law principle of reasonable notice. The motion judge concluded that the appellant waived his entitlement to common law notice in 2006 when his hours and remuneration increased, and that the historical termination provision from the 2006 agreement continued to apply in 2013 when he changed to part-time hours. He determined that the appellant was entitled to eight weeks’ notice of termination and 26 weeks of severance pay under the Employment Standards Act.

HELD: Appeal and cross-appeal dismissed. The effect of the parties’ performance of the 2013 terms served, as the motion judge found, was to amend the existing employment agreement, as it then stood, to provide for the appellant’s requested change from full-time to part-time employment. The extant terms included the 2006 termination clause and waiver of entitlement to common law reasonable notice. The 2006 waiver of the appellant’s common law entitlement to reasonable notice was clear and unequivocal. The motion judge correctly found that there was no change to this term by the events in 2013.  There was adequate consideration for the 2013 amendments to the appellant’s employment contract.

Ariss v. NORR Ltd. Architects & Engineers, [2019] O.J. No. 2801, Ontario Court of Appeal, R.G. Juriansz, D.M. Brown and L.B. Roberts JJ.A., May 30, 2019. Digest No. TLD-July12019007