Social Justice: Employee’s loss despite valid case shows gaps in justice system

The Ontario Court of Appeal endorsement in Musoni v. Logitek Technology Ltd. has caused many employment lawyers to reconsider the validity of termination provisions that have the potential to provide for notice or payment below the minimum requirements of employment standards legislation.

In Musoni, the employee, Bernard Musoni, signed a contract stating that either he or the employer had the right to terminate the employment agreement by providing notice of 15 days. At the time of termination, the employee had been with the employer for about 2-1/2 years. The minimum requirement for termination without cause in Ontario’s employment standards law for such an employee is two weeks notice or compensation in lieu.

The notice required and provided under the employment agreement therefore satisfied the employment standards minimum at the time the termination took place. However, had the termination taken place at any point after the employee’s three-year anniversary, the contractual termination notice would have fallen below the escalating employment standards minimum.

Prior case law made it clear that a contractual termination clause that creates a result below the employment standards minimum at some point in the future is void ab initio. However, in this case the Court of Appeal dismissed the employee’s appeal with a curt endorsement. “The employment contract between the appellant and the respondent was clear in providing for 15 days’ notice in order to terminate,” wrote the court.

Lawyers are now considering whether the Court of Appeal has modified or is willing to reconsider the law.

However, the employee conceded the validity of the employment contract and neither the trial nor the appeal court considered the issue of whether a future potential violation of minimum employment standards requirements invalidates a termination clause. Therefore, there doesn’t seem to be much of an argument that the Court of Appeal has changed or is reconsidering the law.

The case has little significance from an employment law point of view. However, it’s significant from an access to justice point of view. The plaintiff represented himself. Whether that was his choice isn’t clear, but given the short duration of employment and his salary (approximately $43,000 per year), it seems unlikely many lawyers would have been able to handle the case on an economic basis.

It’s apparent the plaintiff had little, if any, legal training. He appeared not to understand the concept of wrongful dismissal as he focused his evidence on the reasons for termination rather than the validity of the termination clause and his entitlement to reasonable notice. He shouldn’t have conceded the validity of the termination clause.

We can’t fault counsel for the defendant for the result. There’s no obligation on opposing counsel to assist a self-represented litigant. Opposing counsel owe a duty to their clients and the court. While counsel have a duty to bring relevant case law to the attention of the court even where it may not support their case, the case law on the validity of termination clauses wasn’t relevant based on the manner in which the plaintiff pleaded and presented his case.

Equally, there can be no criticism of the judges. Judges must conduct themselves in a neutral manner and can’t provide legal advice to a party. Judges can’t draft pleadings for self-represented litigants or advise parties on their submissions.

So while no one is at fault, we have a self-represented plaintiff who lost a case he likely ought to have won.

Based on the length of employment and his position, the likely reasonable common law period of notice was certainly more than 15 days and was likely three months. With proper pleadings, evidence, and argument, the plaintiff could have achieved an award of about $9,000. Instead, he faces cost awards requiring him to pay $8,512.48.

Did this plaintiff get a fair hearing? He certainly did according to the laws of evidence and the manner in which he pleaded his case. But without those qualifications, can we really say he received a fair hearing?

As we go forward to discuss access to justice issues, we must consider how to address such cases.

Alan Shanoff was counsel to Sun Media Corp. for 16 years. He currently is a freelance writer for Sun Media and teaches media law at Humber College. His e-mail address is [email protected].

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