View cases - Stewart McKelvey

- 13 -[34] Stated in another way, while an employer is entitled to terminate an employee withoutcause, there is an implied term in the employee’s contract of employment that the employerwill give the employee proper notice of termination, during which the employee willcontinue to work under the terms and conditions of his contract. Alternatively, an employercan terminate an employee without cause, but without proper notice. This, however,constitutes a wrongful dismissal, in breach of the employment contract. In thesecircumstances, the employer is obligated to compensate for the breach by making a paymentto the employee in lieu of notice. The Ontario Court of Appeal explained it in this fashion inTaylor v. Brown (2004), 73 O.R. (3d) 358 (Ont. C.A.), at para. 15:2011 SKQB 318 (CanLII)Proper notice of termination is an implied term of the contract of employment;payment in lieu of notice is not. We agree with the opinion of Lambert J.A. in[Dunlop v. B.C. Hydro and Power Authority (1988), 23 C.C.E.L. 96 (B.C.C.A.)]when he states that payment in lieu of notice is seen as “an attempt to compensatefor [the employer’s] breach of the contract of employment, not as an attempt tocomply with an implied term of the contract of employment”.[35] In this case, there is no question that Mr. Coppola was terminated without cause andwithout reasonable notice. The attempt to compensate Mr. Coppola for the lack of reasonablenotice by payment of the equivalent of two weeks’ salary was totally inadequate. In legalterms, Mr. Coppola was wrongfully dismissed because he was terminated in breach of hiscontract of employment, that is, without reasonable notice. As such, it was a termination thatdid not comply with the law. It now falls to this Court to determine what the period ofreasonable notice should have been.