contract-law employment canada
Can an employment contract exclude &quot;reasonable notice at common law&quot;?
<p>In an employment contract, is this enforceable?</p>
<blockquote>
<p>The Company may terminate your employment at any time, without just
cause, by providing you with the minimum notice or pay in lieu, that
you are entitled to under the Employment Standards Act. You agree that
your right to notice of termination of employment will be limited to
the notice provided for in this Agreement. You further understand and
agree that by complying with this paragraph 5(c), the Company
satisfies its entire obligation to you, and you will not be entitled
to receive any further severance pay, notice, pay in lieu of notice,
compensation or damages of any other kind, including reasonable notice
at common law.</p>
</blockquote>
<p>5(c) states &quot;if a term is found to be unenforceable, the remainder will remain in affect&quot;.</p>
<p>Also can the same contract require the employee to give at least 2 weeks notice or is that too one sided?</p>

<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" rel="tag">canada</a> <a href="/questions/tagged/ontario" class="post-tag" title="show questions tagged &#39;ontario&#39;" rel="tag">ontario</a></p>
<p>Speaking from the perspective of law in Ontario, Canada, the clause may indeed be defective, contrary to the currently accepted answer. Consider what is mentioned at <a href="https://www.millerthomson.com/en/publications/communiques-and-updates/labour-and-employment-communique/august-18-2015/termination-clauses-and-continuation-of/" rel="nofollow noreferrer">Termination Clauses and Continuation of Benefits: A Warning and Reminder for Employers in Ontario</a> (August 2015):</p>
<blockquote>
<p>Employers often seek to limit their termination liability with
termination clauses. <strong>If a termination clause does not meet the minimum
requirements of the Employment Standards Act, 2000 (“ESA”), then the
termination clause will not be valid and an employee will be entitled
to reasonable notice at common law, thus increasing an employer’s
liability</strong> [...]</p>
<p>[...]</p>
<p><strong>The ESA requires employers to continue benefits during the ESA notice
period</strong> when terminating employment without cause, <em><strong>whether or not
working notice is provided</strong></em>. Where an employer fails to expressly state
in a contract that an employee’s benefits will continue throughout the
ESA notice period, the termination clause may be unenforceable.</p>
<p>[...]</p>
<p>In Stevens v Sifton Properties Limited (2012, ONSC) (“Stevens”), the
termination clause stated that payment in lieu of notice in accordance
with the ESA would be provided where the employer terminates the
relationship without cause.  The termination clause stipulated that
such payment satisfied all future claims against the employer. The
Court determined that <strong>the clause, in addressing benefits implicitly,
did so in a way that “purports to take those [rights of benefits] away
upon mere payment of the required pay in lieu of notice.” The Court
held that this was contrary to the ESA, as the language denied benefit
continuation during the ESA notice period and the termination clause
was therefore void.</strong></p>
</blockquote>
<p>Also, on the saving clause attempt, see <a href="http://hrlawyers.ca/2020/01/13/ontario-court-of-appeal-rules-saving-clause-in-employment-agreement-unenforceable/" rel="nofollow noreferrer">Ontario Court of Appeal rules “saving clause” in employment agreement unenforceable</a> (December 2019).</p>
<p>Consider what's mentioned in <a href="https://financialpost.com/executive/careers/howard-levitt-why-employment-contracts-are-now-bring-rewritten-all-over-the-country" rel="nofollow noreferrer">Why employment contracts are now being rewritten all over the country</a> (December, 2020):</p>
<blockquote>
<p>The Court of Appeal for Ontario has determined that all ambiguous
language must be read in the employee’s favour and the presence of
ambiguity will nullify a termination provision. Any ambiguity will be
fatal. <strong>For example, simply stating that the employee will get the
greater of their employment standards entitlements or some greater
amount, if not worded precisely and correctly, will not hold up
because the courts will find the language to be ambiguous.</strong></p>
</blockquote>
<p>Also, see <a href="https://www.workforcebulletin.com/2020/08/14/ontario-court-of-appeal-limits-severability-of-termination-clauses-in-employment-contracts/" rel="nofollow noreferrer">Ontario Court of Appeal Limits Severability of Termination Clauses in Employment Contracts</a> (August 2020), which says:</p>
<blockquote>
<p>In addition, the Court of Appeal refused to give effect to the
employment contract’s severability clause. The Court stated that <strong>a
severability clause cannot affect clauses that have been made void by
statute. Having concluded that the termination provisions must be
considered together, the severability clause in this case could not be
applied to sever the offending “for cause” portion of the termination
provisions.</strong></p>
</blockquote>
<p>All emphasis above is mine. I am not a lawyer.</p>
