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Khashaba, Procom sent him congratulatory messages, asked him to complete online training and a criminal background check and provided him with a contract of employment, which he signed and returned. Khashaba applied for a 6-month fixed-term contract with Alectra Utilities through Procom, a recruiting, staffing and placement agency. To identify the best language for a termination provision in the circumstances at hand, employers should seek assistance from legal counsel. Alternatively, the provision would have to effectively distinguish between what entitlements apply in the case of the common law standard versus the statutory standard. “Where there is “cause” for termination of employment, the employee will not be provided termination notice, or wages and benefits in lieu, save and except that which is required under the ESA”). The statutory standard - non-trivial “wilful misconduct” and “wilful neglect of duty” - is distinguished from the common law standard, and a breach of the common law standard is not necessarily a breach of the statutory standard. Thus, a contract that provides for no notice of termination (or pay and benefits in lieu) on the basis of the (lower) common law standard will be unenforceable.Ī practical solution to resolve this issue is to always include language in a “for cause” termination provision that confirms minimum statutory entitlements will be provided in any event ( e.g. The Khashaba decision holds that if a “for cause” termination provision provides for termination without notice, it must satisfy minimum standards under the ESA. Otherwise, following Khashaba, the clause will be unenforceable and the employer may be liable for providing reasonable notice of termination. The employee must receive at least their ESA entitlements if their employment may be terminated for conduct that falls short of this standard. Under the ESA, the standard for terminating employment without notice (or wages and benefits in lieu) is non-trivial “wilful misconduct” (or “wilful neglect of duty”). , 2018 ONSC 7617, the Court reminded employers that a valid termination provision must guarantee an employee at least their minimum entitlements under the Employment Standards Act (ESA). In Khashaba v Procom Consultants Group Ltd. See here for our first part, on the recent trend of lengthy notice period awards for long service employees of advanced age.Īs most employers know, unenforceable termination clauses often give rise to costly wrongful dismissal claims. Yet the case law in this area is constantly evolving, and it is increasingly challenging to stay abreast of what a court will consider to be enforceable.
#Just cause definition series#
This is part two in our series on recent Ontario Superior Court decisions that employers should be aware of before finalizing future employment agreements.