New company took over location
A terminated Ontario worker is entitled to notice appropriate for the 16 years he worked in his job and at his location, not the four years since his current employer took over operations, the Ontario Superior Court of Justice has ruled.
Daniel Vinette, 58, was a perfect binder and saddle stitcher for Ottawa-based National Printers Incorporated. He was hired in November 1999.
In 2011, another printing company called Delta Printing began operating out of the same location. Later that year, National Printing became insolvent, but Vinette continued to do his binding and saddle stitching in National’s location until August 2011, when Delta offered him employment in the same capacity.
Delta’s offer included a written employment contract that reduced Vinette’s hourly rate and contained a termination provision that provided for notice of termination and severance pay “mandated by” the Ontario Employment Standards Act, 2000, including benefits, for termination without cause.
Vinette signed the employment contract and continued working uninterrupted in the same position but at the new lower rate.
Vinette’s job remained unchanged, performing the same duties at the same work site for the next four years. On Sept. 9, 2015, Delta terminated his employment. He was paid eight weeks’ salary in lieu of notice.
Vinette sued for wrongful dismissal, arguing Delta didn’t give him the notice to which he was entitled. While Delta considered him an employee only since he signed the employment contract in September 2011, Vinette said there was no break in his employment and he was in fact a 16-year employee deserving of more notice.
The court found that the employment contract’s wording didn’t exclude common law notice damages, as it stated “pay in lieu of that notice and severance pay, if applicable, mandated by the ESA.” The use of the word “and” made it appear that employment standards benefits were in addition to pay in lieu of notice, the court said.
“As a matter of law, if an employer wishes an employee to contract out of rights that accrue at common law, the words of limitation must be clear and the significance of the provision must be made clear,” said the court.
The court noted that Vinette understood his employer was changing from National Printers to Delta with a reduction in pay, something he had no choice but to accept if he wanted to keep his job. However, there was no evidence Delta told him he would be treated as a new hire. Since everything about his job except his pay remained the same, it made sense he would believe his employment was continuing, said the court.
The court agreed with the British Columbia Court of Appeal’s statement in a past decision that “where there is a change in ownership and the new employer does not advise the employees they will not be credited for years of past service, recognition of that service is deemed to be part of the contract of employment.” In this case, Vinette experienced no change in his job duties or location, and Delta provided no evidence on its relationship with National Printing or the transition at the location where Vinette worked. As a result, the court determined it was appropriate to treat Vinette as an employee with 16 years of uninterrupted service.
