Late last year, Diane Bernier was fired from her management
position with Nygard International Partnership after having worked
for the company for 13 years. She was 54 years old at the time, and
was earning total compensation of approximately $190,000. Although
she was fired on a "without cause" basis, Nygard paid her
only those minimum amounts to which she was entitled under the
Ontario Employment Standards Act, 2000 ("the
ESA"), which amounted to just over 21 weeks. Ms. Bernier sued
Nygard claiming that she should have received 18 months' pay in
lieu of common law notice.
Recent case provides tips for termination clauses
Before the Court, Nygard tried initially to rely on an
employment contract that Ms. Bernier had signed as limiting her
entitlements to the ESA. However, even her counsel agreed that the
clause, as drafted, was void because it provided that she would
only receive 30 days' notice and therefore failed to even
satisfy Ms. Bernier's minimum ESA entitlements.
Nygard then sought to rely on a subsequent amendment that they
had tried to implement some years later. One can only assume that
they realized that their employment agreement was invalid and they
tried to fix it by getting Ms. Bernier to sign an amendment.
However, Ms. Bernier denied ever agreeing to the amendment and
Nygard was unable to produce a copy of the amending letter signed
by her or lead any evidence that she had otherwise agreed to the
Finally, Nygard attempted to prove that Ms. Bernier must have
known that she would only receive the minimums under the ESA on her
termination because she was aware that this was the general policy
at Nygard. Here, they pointed to the fact that Ms. Bernier had
presented similar letters, restricting notice to ESA minimums, to
employees under her supervision. Based on this and the fact that
Nygard had attempted to use language in her own letters limiting
her entitlements (albeit poorly), they tried to establish that Ms.
Bernier was aware of the policy and therefore not entitled to full
amounts at common law. The Court rejected all of the above
arguments and ultimately held that Ms. Bernier was entitled to 18
months' notice at common law.1
What does this mean for employers?
1. Be mindful of minimum employment
standards. The Bernier case stands as a good
reminder that, in order to be enforceable, all termination clauses
in employment contracts must provide that employees will receive at
least those minimum amounts required by the ESA. This includes not
just notice of termination, but also statutory severance pay for
those employers with an Ontario payroll in excess of $2.5 million,
and benefit continuation for the minimum period required by the
2. Take care with amendments. Whether
you wish to amend the employment contract to bring an otherwise
unenforceable termination clause into compliance or for some other
reason, changing the terms of a contract after the contract has
already been entered into, is tricky business. Employers would be
wise not to attempt this on their own, and rather use the
assistance of experienced employment law counsel.
3. Don't be tempted by the "termination
policy". When judges are considering cases
involving enforcement of employment contracts, there seems to be a
recurring theme: unless the employee truly understood what they
were signing and agreed to it, a judge will be loathe to see an
employee deprived of his or her entitlement to reasonable notice at
common law. Termination policies are often problematic because the
employees are not aware of them, have never seen them and can
therefore not be said to have agreed to the terms. Again, there are
ways to incorporate the terms of a policy into a written employment
contract, but this must be done with care.
1.Bernier v. Nygard International
Partnership(2013) ONSC 4578.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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