You make the call
This instalment of You Make the Call features three Alberta public school employees who challenged their termination provisions after they were dismissed.
The Parkland School Division is a school board that oversees public schools in the region around Stony Plain, Alta. The school board had a standard form employment contract for all employees that included a termination provision that stated: “This contract may be terminated by the employee by giving the board 30 days or more prior written notice, and by the board upon giving the employee 60 days or more written notice.” There provision didn’t refer directly to the Alberta Employment Standards Code.
On June 2, 2014, the school board provided working notice of termination to three information technology employees, with the effective date of termination Aug. 2. The terminations were part of a restructuring program and were without cause. Two of the employees had nearly 15 years of service and one was just short of 10 years. The employees weren’t required to work during the 60-day notice period but were paid normally.
The three terminated employees sued for wrongful dismissal, claiming they were entitled to common law reasonable notice. They argued that the “60 days or more” phrase in the termination clause of their employment contracts created a minimum notice period of 60 days, but the clause wasn’t clear under what circumstances an employee would get 60 days and what circumstances would trigger a notice period greater than that. Since the language of the clause wasn’t clear on the ceiling for notice entitlement, it should be taken to refer to common law notice based on length of service, they argued.
The three employees also claimed that the termination clause didn’t specifically limit their entitlement to the legislative minimum and didn’t even refer to the Employment Standards Code at all.
You Make the Call
Were the employees entitled to common law reasonable notice?
OR
Did the termination clause in their contracts establish their notice entitlement?
IF YOU SAID the termination clause clearly established the notice entitlement, you’re right. The court noted that the literal meaning must be given to contract language to show the intention of the parties. While the terminated employees argued that there was ambiguity in the termination clause’s notice entitlement, the court disagreed.
The court found that if the contract only contained the words “60 days,” then it would be clear that the notice period would have been fixed at that amount. This would potentially violate the legislative minimums if an employee’s service time reached a certain length. However, the words “or more” indicated that the employee could receive more than that, so 60 days was clearly the floor for notice of termination, said the court.
The court noted that in order for a contract to be ambiguous, the language would have to be “reasonably susceptible” to more than one meaning. In the school board’s contracts, a plain reading of the termination provision yielded just one meaning — employees would receive 60 days’ notice or something greater. This allowed the school board to comply with the minimum notice required for employees with 10 years of service — the legislative minimum entitlement for employees with 10 years of service is eight weeks or 56 days — and allowed it to pay a greater sum depending on the circumstances, said the court, noting that any vagueness towards the exact notice period didn’t take away from the clarity that the employees would receive greater than the legislative minimum.
In addition, the contracts were the same for all employees with the same meaning, and they also provided for a minimum amount of notice for employees to resign with the flexibility to provide more if they so choose.
“When applying an ordinary and natural meaning to ‘or more’ I do not conclude that it means ‘reasonable notice,’” said the court. “I do not find it plausible that the parties would have intended that they would have had to determine whether the common law reasonable notice exceeded the minimum notice and then to provide common law reasonable notice.”
The court also found that the common law right to reasonable notice existed independent of the code and such entitlement is only implied if the contract is silent or ambiguous on notice entitlement. Since the termination provision wasn’t silent or ambiguous on notice entitlement, it was enforceable as long as it complied with the minimum requirements, which it did.
For more information, see:
- Bryant v. Parkland School Division, 2021 ABQB 391 (Alta. Q.B.).
