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Difference between revisions of "Employment Law Issues (9:V)"
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Employment Law Issues (9:V) (view source)
Revision as of 13:56, 18 August 2021
, 13:56, 18 August 2021→Reasonable Notice at Common Law – Indefinite Term Contracts
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In the absence of a valid termination clause in an employment contract, the employee is entitled to reasonable notice of dismissal at common law. The amount of reasonable notice, or pay in lieu, should be sufficient to allow the employee to find comparable employment, based on the employee’s age, length of service, and the nature of the employee’s position. | In the absence of a valid termination clause in an employment contract, the employee is entitled to reasonable notice of dismissal at common law. The amount of reasonable notice, or pay in lieu, should be sufficient to allow the employee to find comparable employment, based on the employee’s age, length of service, and the nature of the employee’s position. | ||
The case of ''Bardal v Globe and Mail Ltd'' | The case of ''Bardal v Globe and Mail Ltd'', 1960 294 ONSC, https://canlii.ca/t/gghxf includes a list of the four primary factors to be considered in determining the appropriate length of a notice period: | ||
i) character of the employment; | i) character of the employment; | ||
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iv) the availability of similar employment, having regard to the experience, training and qualifications of the employee. | iv) the availability of similar employment, having regard to the experience, training and qualifications of the employee. | ||
These are known as the Bardal factors. The Supreme Court has endorsed this list in a number of cases; see e.g. ''Honda Canada Inc v Keays'', 2008 SCC 39, 2 SCR 362. However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | These are known as the Bardal factors. The Supreme Court has endorsed this list in a number of cases; see e.g. ''Honda Canada Inc v Keays'', 2008 SCC 39, 2 SCR 362, https://canlii.ca/t/1z469. However, these factors are not exhaustive, and additional factors may be considered on a case-by-case basis. | ||
The current upper limit of “reasonable notice” is 24 months, generally for the longest-tenured, older, and senior-level employees. While there are some case beyond this upper 24-month limit, which should be reviewed carefully if employees fall within the relevant age and years of service categories, these cases are the exception. There has been a trend over the past years with long term employees working for employers their entire lives and dismissed in their late 60s and early 70s claiming severances of 30 or more months. However, in ''Dawe v. Equitable Life Insurance Company of Canada'', the Ontario Court of Appeal decision suggests that “''exceptional circumstances''” must be present to award a notice period above 24 months, and that lengthy service and age would not generally suffice to enlarge a “cap” of beyond twenty-four (24) months. | The current upper limit of “reasonable notice” is 24 months, generally for the longest-tenured, older, and senior-level employees. While there are some case beyond this upper 24-month limit, which should be reviewed carefully if employees fall within the relevant age and years of service categories, these cases are the exception. There has been a trend over the past years with long term employees working for employers their entire lives and dismissed in their late 60s and early 70s claiming severances of 30 or more months. However, in ''Dawe v. Equitable Life Insurance Company of Canada'', 2019 ONCA 512, https://canlii.ca/t/j12wp, the Ontario Court of Appeal decision suggests that “''exceptional circumstances''” must be present to award a notice period above 24 months, and that lengthy service and age would not generally suffice to enlarge a “cap” of beyond twenty-four (24) months. | ||
Reasonable notice is an entitlement to assist the employee. In ''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801, the Ontario Court of Appeal held that the financial health of a company does not reduce its notice obligations to employees. | Reasonable notice is an entitlement to assist the employee. In ''Michela v. St. Thomas of Villanova Catholic School'', 2015 ONCA 801, https://canlii.ca/t/gm6xq, the Ontario Court of Appeal held that the financial health of a company does not reduce its notice obligations to employees. | ||
Termination clauses in contracts are not always valid and enforceable. | Termination clauses in contracts are not always valid and enforceable. | ||
In addition, be aware that employers may try to rely on termination provisions in an employee handbook or other such workplace policy documents. For example, in ''Cheong v Grand Pacific Travel & Trade (Canada) Corp.'', 2016 BCSC 1321, the | In addition, be aware that employers may try to rely on termination provisions in an employee handbook or other such workplace policy documents. For example, in ''Cheong v Grand Pacific Travel & Trade (Canada) Corp.'', 2016 BCSC 1321, https://canlii.ca/t/gskng the BC Supreme Court found that an employee handbook termination clause did not act to limit the employee’s reasonable common law severance. It is important to review and question all documentation relied on to limit an employee’s severance. | ||
==== Calculating Reasonable Notice ==== | ==== Calculating Reasonable Notice ==== | ||
