The ESA prohibits changing terms and conditions of employment during the statutory notice period. This means that when dismissing a superintendent without cause, the condominium corporation must maintain all benefits (including coverage for extended medical, life insurance, STD and LTD) to which the individual is entitled for the appropriate notice period. The Condo Board cannot escape this obligation by providing the dismissed superintendent with termination pay in lieu of working notice. Therefore, if a superintendent is dismissed with termination pay in lieu of working notice, the Board must ensure that all benefits are maintained after the termination date for a period of time equivalent to the length of the statutory notice period to which the superintendent would otherwise have been entitled. Common law “reasonable notice” In addition to the minimum standards
and protections afforded by the ESA, and provisions in a written contract of employment (if any), a superintendent’s employment relations is also governed by the common law. At common law, in the absence of an enforceable contractual termination provision, an employment relationship of indefinite duration may only be terminated for cause or upon providing reasonable notice.
Reasonable notice is assessed in each individual case taking into account factors that are intended to reflect the length of time the employee is likely to need to locate a similar position. These factors include the employee’s age, length of service, the type of work performed, salary and future employment prospects. As a general rule, upper level managers and executives are entitled to longer notice than lower-level employees who have worked for the same number of years. Salary or position as a factor in assessing reasonable notice
reflects the view that it is more difficult to find a new management or specialized position than a lower-level job. Similarly, courts treat greater age and longer service as indications that the employee will have more difficulty finding new employment. Greater age and length of service can significantly increase the assessment of reasonable notice.
In assessing the quantum of damages, courts have taken into consideration, among other factors: salary; bonus; fringe benefits (i.e., life insurance, accidental death and dismemberment insurance, health insurance, etc.); mitigation expenses (i.e., moving and relocation costs, educational courses); and mental distress and punitive damages.
Because the assessment of reasonable notice is individual to each case, a superintendent’s precise common law entitlement is unknown until determined by a court. At the time of the
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