Just Notice Reform: Enhanced Statutory Termination Provisions for the 99%
Available at SSRN.
Also published in the Canadian Labour and Employment Law Journal, Forthcoming.
The current state of affairs in Ontario for average and low wage earners who lose their jobs without cause is not satisfactory. These terminated employees must choose between two unappealing courses: either accept minimal entitlements to notice under the Employment Standards Act, 2000, or seek to obtain what may be a greater entitlement under common law, but which may also require engaging in long and costly litigation. Moreover, there are good reasons to question the reliability and effectiveness of the individualized approach to notice determinations undertaken by courts. The practical inaccessibility and inadequacy of these options has been recognized repeatedly, yet these weaknesses have not been addressed by statutory or common law reform. This article addresses the lack of realizable, “just notice” entitlements for employees. Rather than making a detailed proposal for reform, this article seeks to provide a focused examination of the shortcomings of the existing situation, and identify possible avenues for reform. We first provide an introduction and critique of the current individual termination entitlements at common law and under the ESA, including the purposes of such requirements and the results of empirical research. Next, earlier proposals for reform are reviewed. Finally, we set out a series of considerations for “just notice” reform.