Plaintiff`s unequivocal resignation and re-hiring marked break in employment relationship

Labour and Employment Law - Employment Law - Termination and dismissal

Plaintiff began working in defendant`s dental practice in 1993. Throughout her employment, plaintiff was required to sign series of employment agreements starting in 1999, all of which limited her entitlement for wrongful dismissal damages to minimum required by Employment Standards Act, 2000 (Act). Plaintiff tendered her resignation on March 28, 2015, effective July 7, 2005. During notice period and prior to her effective day of resignation, plaintiff advised defendant of her intention to remain employed. On June 30, 2005, plaintiff signed employment agreement that limited liability, should it terminate plaintiff without cause, to notice or payment in lieu of notice in accordance with Act. In December 2012, defendant terminated plaintiff’s employment without cause and given one week’s salary as Act`s minimum, since she had signed her most recent employment agreement in 2011. Trial judge held that none of three employment contracts were enforceable, therefore plaintiff was wrongfully dismissed and common law damages were assessed in lieu of reasonable notice at 15 months. Defendant appealed. Appeal allowed. Plaintiff`s unequivocal resignation and re-hiring in 2005 marked break in employment relationship, after which entirely new contract was reached between her and defendant. here was consideration for that new employment contract, that is, plaintiff’s offer to again be employed by defendant and his acceptance of her offer to again employ her. On this basis, Act's minimum notice was maximum amount to which plaintiff was entitled, measured from 2005.

Theberge-Lindsay v. 3395022 Canada Inc. (Kutcher Dentistry Professional Corporation) (2019), 2019 CarswellOnt 9107, 2019 ONCA 469, P. Lauwers J.A., G. Pardu J.A., and I.V.B. Nordheimer J.A. (Ont. C.A.); varied (2018), 2018 CarswellOnt 8835, 2018 ONSC 3222, V.R. Chiappetta J. (Ont. S.C.J.).

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