Recent judgments have muddied the waters on the importance of considering the relative sophistication of employees in determining the enforceability of termination provisions in employment contracts. Employee sophistication had previously been considered in interpreting whether termination provisions were valid, on the premise that inherent in the employer-employee relationship is an imbalance of power. This consideration may not be as significant in light of recent developments in case law.
Last year, three of my top five stories were COVID related. This year all five stories are COVID related, covering temporary layoffs, mandatory vaccination policies, just cause for termination, reasonable notice periods and wrongful dismissal damages.
In Ontario, there is a presumption that when an employee is dismissed from their employment without cause, they will receive reasonable notice of the termination (or payment in lieu thereof). While not the focus of this article, it is necessary to note that this presumption can, however, be displaced by contractual language clearly specifying an alternate lawful entitlement.