hr practice
PROCEED
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CAUTION
Working notice is frequently viewed by employers
as a way to save on termination costs, particularly
for mass termination. However, as is often the case
when one thinks they are getting a bargain, if not
carefully considered, it could end up costing more in the long run.
Working notice periods were recently examined by the Court
of Appeal in Wood v. CTS of Canada Co., 2018 ONCA 758
(CanLII). Here, CTS of Canada Co. (CTS), provided its employ-ees
written notice that its plant would close in 11 months and all
employees would be terminated as a result. The termination date
for most employees was extended for an additional 13 weeks, as is
permitted under the Employment Standards Act, 2000 S.O. 2000,
c. 41 (the ESA). Despite the lengthy notice provided, a group of
employees brought a class action against CTS, alleging that the
notice was invalid. The employees were not unionized, had no
written contract of employment and were therefore entitled to
common law notice.
The ESA imposes several obligations on an employer in mass
terminations. When between 50 and 200 employees are ter-minated
within a four-week period, the employer must provide
eight weeks’ notice. Notice is triggered by completing a Form 1
that is then posted in the workplace and sent to the ESA direc-tor.
Although CTS provided more common law notice to its
employees than the ESA required, it conceded that it committed
a technical breach given it did not serve and post the Form 1 until
12 days into the eight-week statutory notice period. At dispute
between the parties was the impact of this breach.
The Motion’s Court Judge determined that the Form 1 had to
be served on the ESA director at the same time that CTS gave
notice to its employees, a decision which had the effect of nullifying
almost all of the common law working notice provided. The Court
of Appeal overturned this decision and determined that the Form 1
only had to be served and posted at the beginning of the statutory
notice period. CTS conceded, and the Court of Appeal agreed, that
leolintang/123RF
By Erin Porter
HRPROFESSIONALNOW.CA ❚ FEBRUARY 2019 ❚ 11
/HRPROFESSIONALNOW.CA