Samfiru Tumarkin Secures Win For “Laid-Off” Client In Small Claims

A recent client of Samfiru Tumarkin LLP was laid-off by his employer and paid only his minimum entitlements under the Employment Standards Act. Employers will often use the term “lay-off” when in fact and in law it is a termination. This term is often used but many employees may not know that they are entitled to notice in this circumstance.

Upon termination, an employee is entitled to a certain period of notice, depending on the details of their employment. There are only two options for the length of notice. One is merely the minimum standards under the Employment Standards Act, and the other is called common law reasonable notice, which is generally a longer period than the minimum under the Employment Standards Act. The starting point is reasonable notice. An employer can contract out of reasonable notice by having a clear contract stating that the employee is only entitled to his/her entitlements under the Employment Standards Act, but it must be extremely clear so that there’s only one possible interpretation of the contract. In this case, there was no employment contract that limited our client’s entitlements to the Employment Standards Act, and he was therefore entitled to reasonable notice.

Our client was 61 at the time of termination and worked as a Control/Systems Engineer for the company for 2 years, making $90,000. We initially claimed that our client was entitled to 4 months of reasonable notice (or severance pay) at Small Claims Court. However, because our client successfully mitigated his damages, meaning he found a new job making the same salary, he was only entitled to notice up until the start of his new job. In this case, there were 66 days between his old job and the new job. At trial, we were successful in obtaining reasonable notice in the amount of the full 66 days plus costs, disbursements, and interest.

Read the decision here.