When properly drafted, such clauses prevent costly common law notice claims

In a significant decision for Ontario employers, the province’s Court of Appeal has reaffirmed that clear and unambiguous termination clauses that comply with the Employment Standards Act, 2000 (ESA) will be enforceable, even if they eliminate an employee’s entitlement to common law notice.

The case, Bertsch v. Datastealth Inc., 2025 ONCA 379, confirms that employers can rely on well-drafted ESA-based termination provisions to limit liability on termination without cause, provided the language used meets statutory minimums and avoids ambiguity.

The appellant in the case, Gavin Bertsch, was employed by Datastealth as a Vice-President, earning $300,000 per year. After just under nine months of service, his employment was terminated without cause. He received four weeks’ pay in lieu of notice under the ESA and brought a claim for common law wrongful dismissal damages.

Wrongful dismissal claim

The employer moved to dismiss the action on the basis that the termination clause in the employment agreement limited Bertsch’s entitlement to ESA minimums only, expressly excluding any common law notice. The Ontario Superior Court granted the motion, and the Ontario Court of Appeal upheld the decision on appeal.

The agreement stated that on termination “with or without cause,” the employee would receive only the minimum entitlements under the ESA, nothing more. It also included a “failsafe” clause ensuring...

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