In order for working notice to be applicable, the termination date must be clear and unambiguous, otherwise notice provided to the employee prior to the termination date may not qualify as working notice and the employer may have to provide the employee with their full notice entitlements.
Such was the subject matter of the Ontario Court of Appeal’s recent decision between Antonio Di Tomaso and his former employer Crown Metal Packaging LP.
On September 9, 2009, after working for Crown Metal Packaging LP for 33 years as a Two-Piece Mechanic and Press Maintainer, Mr. Di Tomaso received a termination letter from the company informing that he would be terminated on November 6, 2009.
On November 4, 2009, two days before his scheduled termination date, the company provided Mr. Di Tomaso with a second termination letter extending his termination date with a temporary period of work until December 18, 2009. This pattern of receiving an extension to his employment with a period of temporary work prior to the previously established termination date continued until February 24, 2010 when Mr. Di Tomaso received his fifth letter confirming his new termination date as February 26, 2010.
Following his termination on February 26, 2010, Mr. Di Tomaso commenced an action in the Ontario Superior Court of Justice claiming that the company failed to provide him with his proper notice or termination pay in lieu thereof in accordance with the Employment Standards Act, 2000, as well as seeking common law damages for wrongful dismissal.
Ontario Superior Court of Justice’s Decision
At trial, the company argued that the termination letter Mr. Di Tomaso received on September 9, 2009 was valid and that the extensions of temporary employment were authorized periods of working notice in accordance with section 6(1) of the Termination and Severance of Employment Regulation. Nonetheless, the Judge determined that the cumulative period of extensions provided by the company was greater than the 13 weeks permitted by the Regulation, resulting in the final letter dated February 24, 2010 providing a clear and unequivocal notice of termination. Therefore, the Judge concluded that the time between September 9, 2009 and February 26, 2010 did not constitute working notice and awarded Mr. Di Tomaso 22 months notice. The company appealed the Court’s decision to the Ontario Court of Appeal.
Appeal to the Ontario Court of Appeal
After reviewing the Judge’s decision, the Court of Appeal concluded that the appeal should be dismissed, finding that the Judge’s interpretation of the Regulation was correct and that fresh notice of termination was required given that the continuous extensions of Mr. Di Tomaso’s employment created uncertainty as to the final termination date.
Points of Note
This case serves as an example of how an Employer’s actions after notifying an Employee of their impending termination may disqualify any time worked by an Employee as working notice. Though an impending termination date may be flexible, the date established must be clear and unambiguous in order for working notice to be applicable. Without such clarity, the Courts may find that the Employee is entitled to their full notice entitlements despite prior working notice of their termination.
For more details, see: Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII)
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