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In this paper the authors provide a review and critique of existing legal standards and methods, at common law and under employment standards legis- lation, for determining the length of notice to which employees are entitled as a result of without-cause termination. They argue that, at common law, the factors relied on to determine the amount of termination notice contribute to systemic bias and power imbalances between employers and employees, while fostering the illusion of individualized assessment. As well, the regime is inaccessible to low- and middle-income employees due to the costs of litigation. Minimum statutory notice in Ontario, which relies solely on the factor of length of service, is heavily discounted in relation to the common law, and suffers from poor enforcement and widespread non-compliance. In light of the shortcomings of the common law and statutory regimes, the authors conclude that there is a clear need for reform. While other proposals for reform have been advanced, the authors contend that they focus too heavily on length of service, are likely to perpetuate the problems associated with the existing systems, and fail to comprehensively take into account the primary purpose of notice - to provide employees with a "cushion" between termination and re-employment. The auth- ors then set out their proposal for a "Middle Course" approach to determining length of notice, which would be based on a series of objective factors related to the estimated time needed by a dismissed employee to obtain re-employment. It would be implemented by replacing the existing formula under employment standards legislation with one that would enable notice entitlements to be deter- mined in a more predictable, rational and equitable fashion.
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The nature of work has undergone tremendous change in recent decades, and these changes have been well documented and widely debated. Similarly, the adequacy of regulation and institutions of work to operate in the face of these transformations has been questioned. Much attention has been devoted to the condition of this decline. Work and workplaces have been reorganized (in one memorable phrase, "fissured"),' increased intermediation in the traditional employment relationship has made it more difficult to identify the "real employer," and fewer "employees" exist, as precarious work and contracting-out of work has grown. These workers are more difficult to organize, and labour and employment relations regulatory schemes have failed to respond robustly or effectively to these changed conditions. Equal attention has been paid to the causes of the decline in union density: the "globalization of production" through technological and communications innovations, the offshoring of work (even work previously thought to be impervious to this trend), the expansion of the financial sector and the proliferation of its meth- ods and values into the productive or "real" economy (a process called financialization), the privatization of formerly public goods and services, and the reorganization of firms to (re)focus on "core competencies" and contract out peripheral functions. Even if all of these possible causes were overcome, workers' attitudes toward traditional organizations such as unions and even toward workers' identities as such have also changed profoundly, and organizing worker voice and collective bargaining has become more challenging.
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- Journal Article (2)