Justin W. Anisman is an Employment Lawyer and principal of Anisman Law. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.
Due to a very disruptive decision released by the Ontario Court of Appeal last week in Waksdale v Swegon North America Inc., 2020 ONCA 391, your employment contract is probably no longer enforceable.
Waksdale v Swegon North America Inc.
Waksdale v Swegon North America Inc. was a wrongful dismissal action by employee Benjamin Waksdale against his former employer Swegon North America Inc. Mr. Waksdale was terminated without cause after working only 8 months. He sued for 6 months pay in lieu of reasonable notice.
The plaintiff’s employment contract had the following “Termination Without Cause” provision:
You agree that in the event that your employment is terminated without cause, you shall receive one week notice or pay in lieu of such notice in addition to the minimum notice or pay in lieu of such notice and statutory severance pay as may be required under the Employment Standards Act 2000 as amended. All reimbursement for business expenses shall cease as of the date of termination of your employment, however, you shall be reimbursed for legitimate business expenses that have been incurred and submitted to the Company but not as yet paid you to that date. The terms of this section shall continue to apply notwithstanding any changes hereafter to the terms of your employment, including, but not limited to, your job title, duties and responsibilities, reporting structure, responsibilities, compensation or benefits.
The employment contract also had a “Termination for Cause” provision. It was conceded by the employer that the wording of this Termination for Cause provision breached the terms of the Employment Standards Act, 2000 (“ESA”) and was therefore void and unenforceable. In what is probably the most problematic portion of this decision, neither the Ontario Superior Court nor the Ontario Court of Appeal set out the wording of the Termination for Cause provision. Accordingly, we are all left to guess at what made it unenforceable.
At trial, the lawyer for Mr. Waksdale argued that the employment contract (or at the very least both of its termination provisions) was not enforceable because the Termination for Cause provision was void.
The Ontario Court of Appeal agreed and held as follows:
An employment agreement must be interpreted as a whole and not on a piecemeal basis. The correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA. Recognizing the power imbalance between employees and employers, as well as the remedial protections offered by the ESA, courts should focus on whether the employer has, in restricting an employee’s common law rights on termination, violated the employee’s ESA rights. While courts will permit an employer to enforce a rights-restricting contract, they will not enforce termination provisions that are in whole or in part illegal. In conducting this analysis, it is irrelevant whether the termination provisions are found in one place in the agreement or separated, or whether the provisions are by their terms otherwise linked.
What Makes a Termination for Cause Provision Void and Unenforceable?
As I have previously written about in my article “Termination of the Employment Relationship in Ontario”, where an employer has “just cause” for termination they can fire an employee without paying reasonable notice at common law (subject to the principles of Progressive Discipline).
Examples of “Just Cause” at common law include:
- Repeated breaches of company policy
- Repeated Truancy
- Violence or Harassment
When terminating for just cause, however, employers are still required to pay ESA Notice and Severance unless that employee “has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.
Unless your employment contract explicitly carves out a distinction between termination for Just Cause and termination for “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”, it may be void and unenforceable, as was found by the Court of Appeal in the Waksdale decision. As a result, your employment contract’s “Termination Without Cause” provision might also be found unenforceable.
Employment Contracts Post-Waksdale
The existence of the Waksdale decision is a serious liability for Ontario employers. Previously, little attention had been paid to the enforceability of the “Just Cause” provisions. From now on, that will no longer be the case. In my experience, very few employment contracts that come across my desk draw the distinction between Just Cause and “wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer”.
As a result, the majority of employment contracts in Ontario need to be amended and updated. Otherwise, employers risk their termination provisions being unenforceable, which means they will owe employees common law reasonable notice. Common law reasonable notice often works out to months or years of notice rather than weeks under the ESA.
Waksdale Raises More Questions
While the Ontario Court of Appeal has made up its mind on the effect of poorly drafted Without Cause provisions, the Waksdale decision raises other important questions concerning employment contract more generally: if other terms of an employment contract breach the ESA, what is the effect on the enforceability of the termination provisions? For example, what if your employment contract provides for less than the minimum vacation entitlements, does that invalidate your termination provision?
This is a problem because, in Waksdale, the Court of Appeal stated “the correct analytical approach is to determine whether the termination provisions in an employment agreement read as a whole violate the ESA”. The Court also explained that “an employment agreement must be interpreted as a whole and not on a piecemeal basis”.
Whatever the answer to that question is, there is no doubt that employees now have another arrow in their quiver when challenging employment contracts— and employers face yet another risk when terminating an employee.
Employers Need New Employment Contracts
In conclusion, employers need to update their employment contracts. Doing so is inexpensive and pays substantial dividends at termination time. As noted, the difference in notice period, for an employee with an enforceable termination provision versus one without, can be months or years of pay.
If you are interested in learning how to implement new or update employment contracts, read my article, How to Change Employment Contracts.