One of the messages that we deliver to clients all the time is the importance of using written employment agreements for all employees. A recent case from the Ontario Court of Appeal stands for the proposition that the unskilled nature of employment is no longer much of a factor in determining what will be a “reasonable notice period” in wrongful dismissal cases. In Di Tomaso v. Crown Metal Packaging Canada LP, the Court was dealing with 62 year old, unskilled labourer who had been with the employer for 33 years at the time of termination. In upholding a notice period of 22 months assessed by the lower court, the Court put a final nail in the coffin of the traditional employer argument that the unskilled or clerical nature of employment meant that there should be a hard “cap” of 12 months’ notice.
Forget whether you agree or disagree with the Court on the issue. This horse is out of the barn and the barn has burned down. What employers need to do is focus on having a strategy to manage termination costs before the employment relationship starts. And the most effective way to do that is to have a proper written employment agreement with a termination provision that governs both parties if a termination without cause takes place. It doesn’t have to be fancy. Just make sure that the employee has a chance to consider it and sign it before employment commences and that it doesn’t intentionally (or unintentionally) provide less than the employee’s statutory entitlements upon termination. There are simple examples of contract language available and this is truly a case in which an ounce of prevention is worth a pound of cure.