If you’ve spent any time on dating apps, you’ll know that a common feature on people’s profiles is often an argument about Oxford commas (which is why I’m partial to the offline world). Jokes aside, comma placement is important, as the Employer in Brocklehurst v. Micco Companies Limited, 2025 NSSC 192 (“Micco”) discovered.
Background
In Micco, the employee was employed for just under eight and a half years. His employment was pursuant to a written agreement dated January 19, 2016, which contained the following termination clause:
“Your employment may be terminated by Micco without cause, upon provision to you of the following payments:
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- any portion of the annual salary and accrued vacation pay, if any, that has been earned by your [sic you] prior to the date of termination by [sic, but] not yet paid;
- continued participation in Micco group health plan for such time as may be required under Nova Scotia Labour Standards legislation; and
- only such minimum notice of termination, or pay in lieu thereof, and severance pay (if applicable) to which you are entitled under the Nova Scotia Labour Standards legislation.”
The employer terminated his employment according to this provision, and the employee was provided with his minimum statutory entitlements under Nova Scotia’s Labour Standards Code (the “Code”). He then sued the employer for wrongful dismissal damages at common law, arguing that the termination clause was unenforceable due to ambiguity.
Remixing the Hits
The court reiterated the leading employment cases with respect to termination clauses and their interpretation, including Waksdale and Bertsch v Datastealth, concluding that an employee’s entitlement to reasonable notice at common law can only be displaced if there is sufficiently clear and express contractual language. Where the reasonable interpretation of a termination clause contains ambiguity with respect to the common law entitlement, an employee’s common law entitlements will not be displaced.
Based on that reasoning, the court found that the termination clause at issue was ambiguous and did not expressly contract out of common law. Subsection (iii) was the offender, as the court held that the qualifier “to which you are entitled under the Nova Scotia Labour Standards legislation” could be reasonably interpreted to not apply to “only such minimum notice of termination”. Therefore, there was a reasonable interpretation where minimum notice was not limited to the legislation. The comma placement in subsection (iii) sunk the termination clause.
Even if that sounds crazy, the court then added that the clause was also ambiguous because it did not specifically refer to the Code, rather it referred to “Nova Scotia Labour Standards legislation”. It was also an issue that the clause referred to “severance pay” and to “minimum notice of termination”, both of which are not terms referenced in the Code and are terms colloquially used to refer to common law notice.
So even if it were assumed that the clause was referring to the Code when it referenced Nova Scotia legislation, it was not clear that it was referencing the Code’s termination entitlements, since the Code refers to “pay-in-lieu of notice” where no working notice is provided, and not to the terms referenced in the clause at issue. As a result of this language, the clause was ambiguous and could be reasonably interpreted as providing the Employee with his entitlements at common law and under the Code. The court awarded the Employee with eight months of pay in lieu of reasonable notice.
Pith and Substance
If you read the termination clause in Micco, and thought it seemed enforceable, you’re not alone. At first glance, it seems like a reasonable clause drafted in plain language – not ambiguous, right? As we just saw – wrong! Micco highlights the importance of working with HR counsel to draft and implement employment contracts. Not only do we know where to put the commas, but we are keyed in on the specific language to use to avoid ambiguity.
If you’re an employer, we can assist you in preparing and revising your employment agreements so that they are in line with the current state of the law.
If you’re an employee, we can review your employment agreements to determine the enforceability of your termination clause and assess your potential entitlements.
As we often say: if you think you need an employment lawyer, you probably do.
