Additionally, the employment agreement included a clause stipulating that if any entitlements were less than ESA minimums, the worker would receive the statutory minimums instead.
Datastealth terminated the worker’s employment after he had been with the company for eight-and-a-half months, providing him with four weeks’ pay in lieu of notice. The statutory minimum under the ESA for the worker’s service time was three weeks.
Wrongful dismissal action
The worker sued for wrongful dismissal, claiming that the termination clause was unenforceable and he was entitled to 12 months’ common law notice. He argued that the clause was ambiguous and could allow Datastealth to terminate his employment for cause that fell short of “willful misconduct, disobedience or willful neglect of duty” without any notice or termination pay. Under the ESA regulation, the “willful misconduct” standard is the only circumstance when notice or termination pay doesn’t have to be provided by the employer.
Datastealth filed a motion seeking an interpretation of the termination clause and a dismissal of the worker’s action on the grounds that it disclosed no tenable cause.
The motion judge sided with Datastealth, finding that the termination clause was enforceable and not in violation of the ESA. There was “no reasonable interpretation” of the clause that excluded the ESA’s minimum requirements, the motion judge said. In addition, the “failsafe” clause that expressly provided for minimum ESA entitlements in the event the termination clause fell short than the statutory minimums wasn’t necessary because the termination clause was clear and unambiguous, said the motion judge in dismissing the worker’s wrongful dismissal action.
