the statutory notice was not effective until it was served on the ESA
director – given the clear language in the ESA – and that employees
were therefore entitled to an additional 12 days pay in lieu of notice.
The employees also argued that CTS should not be given credit
for the weeks of working notice where they worked overtime
hours, whether by consent or not, in excess of the allowances in
the ESA. CTS had ramped up production prior to the plant clo-sure
to stockpile parts. This resulted in many employees working
more than the permissible 48 hours a week. The Court of Appeal
upheld the conclusion that the primary objective of reasonable
notice is to provide the dismissed employee with an opportunity
to obtain alternate employment. Exceptional workplace demands
that negatively affect an employee’s ability to seek alternate work
may disentitle an employer to credit for the working notice period.
Given that employees cannot contract out of their statutory
entitlements, an employee’s agreement to work overtime in viola-tion
of the ESA cannot be viewed as consensual. Employees were
entitled to additional pay in lieu of notice for any weeks that they
worked more than 48 hours regardless of whether they agreed to
work the extra time. If CTS had obtained written agreement with
employees under section 17.1 of the ESA, and the agreement was
approved in course by the ESA director, the Court indicated that
the result would have been different.
The Court of Appeal also upheld the determination that
employees who were offered temporary work more than 13 weeks
after the initial termination date did not receive proper notice.
Notice must be clear, unambiguous and include a final termina-tion
date in order to be valid. Although CTS had provided the few
remaining employees with various letters extending their notice
period, it was unclear until the very last letter what the actual
termination date would be. As a result, all of the common law
working notice, except for the six weeks provided for in the last
letter, was invalidated.
The principles in this case demonstrate that employers must be
certain that they are providing employees with “reasonable” notice.
In the context of working notice, reasonable means, among other
things, that employees must be afforded an opportunity to find
alternate employment. Employers cannot require employees to
work overtime hours in excess of what is permitted under the ESA
and expect to meet the definition of reasonable. Furthermore,
employers must be very careful when crafting working notice. The
statutory obligations imposed can have significant consequences if
they are not followed, including the employer not receiving credit
for any of the working notice provided. n
Erin Porter is a partner at Fasken.
WHEN BETWEEN 50 AND 200 EMPLOYEES ARE TERMINATED WITHIN A
FOUR-WEEK PERIOD, THE EMPLOYER MUST PROVIDE EIGHT WEEKS’ NOTICE.
12 ❚ FEBRUARY 2019 ❚ HR PROFESSIONAL