Employee's waiver was clear and unequivocal

Plaintiff employee A agreed to work for defendant employer N when employer purchased predecessor’s assets. Employee negotiated contract that increased his work hours and pay, which included document that provided notice of termination was in accordance with Employment Standards Act, 2000 (“2006 waiver”). Later, employee changed to part-time hours, but he was required to resign, enter into new agreement, and limit his notice entitlement to date of new agreement (“2013 terms”). Three years later, employee was terminated and given 3.5 weeks' notice. Motion judge granted employee's motion for summary judgment of his action for wrongful dismissal. Judge held that employee was only entitled to maximum of eight weeks of notice and 26 weeks of severance pay under Act because termination provision in employment agreement was clear and unambiguous in rebutting common law presumption of pay in lieu of notice. Employee appealed and employer cross-appealed. Appeal and cross-appeal dismissed. Judge correctly found attempt by purported resignation to break employee's years of continuous service was ineffective as being contrary to s. 5(1) of Act. Judge's determination that resignation and waiver were ineffective did not invalidate parties' performance of 2013 terms, which amended existing agreement. Employee's 2006 waiver was clear and unequivocal, and there was no change to this by 2013 terms. There was no error that would justify appellate intervention. There was adequate consideration for 2013 amendments to employment contract. If there had not been waiver of employee's common law right to reasonable notice, employee mitigated his damages, so employer's cross-appeal was dismissed.

Ariss v. NORR Limited Architects & Engineers (2019), 2019 CarswellOnt 8608, 2019 ONCA 449, R.G. Juriansz J.A., David Brown J.A., and L.B. Roberts J.A. (Ont. C.A.); affirmed (2018), 2018 CarswellOnt 4906, 2018 ONSC 620, Sylvia Corthorn J. (Ont. S.C.J.).

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