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Employment Cases - Termination - Employer Duties on Termination. Oz Optics Limited v. Summers
In Oz Optics Limited v. Summers (Div Court, 2023) the Divisional Court reviews several aspects of the Employment Standards Act (ESA) relevant to 'wages in lieu' termination notice:The Statutory Framework
[9] Section 5(1) of the ESA contains a “no contracting out” provision whereby “[s]ubject to subsection (2), no employer or agent of an employer and no employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.”
[10] Section 54 of the ESA provides that “No employer shall terminate the employment of an employee who has been continuously employed for three months or more unless the employer, (a) has given to the employee written notice of termination in accordance with section 57 or 58 and the notice has expired; or (b) has complied with section 61 [pay in lieu of notice].”
[11] The notice provision of the ESA under s. 61(1) [sic: s.60] provides that “During a notice period under section 57 or 58, the employer, (a) shall not reduce the employee’s wage rate or alter any other term or condition of employment; (b) shall in each week pay the employee the wages the employee is entitled to receive, which in no case shall be less than his or her regular wages for a regular work week; and (c) shall continue to make whatever benefit plan contributions would be required to be made in order to maintain the employee’s benefits under the plan until the end of the notice period.”
[12] Under O. Reg. 288/01 of the ESA (“the regulation”), employees are entitled to notice of termination or termination pay as well as severance pay unless one of the enumerated subsections exempts them from such entitlements. Subsection 2(1)(3) of the regulation provides that the following employees are exempt from receiving notice of termination or termination pay under the ESA:2(1)(3) An employee who has been guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.
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