Accounting for Law
ADR, Employment & Labour

Irrelevant factors and other concerning trends in notice period cases

Toronto employment mediator and arbitrator Barry B. Fisher is noticing some troubling trends in wrongful dismissal cases, he tells AdvocateDaily.com.

Fisher, who created and maintains the Wrongful Dismissal Database, published by Carswell, says it is becoming more difficult to predict notice periods for short-service employees after they lose their jobs. Notice periods determine how much severance an employee should be paid.

He also says more judges are giving weight to factors that should not matter — such as whether someone was a “good employee” before losing their job.

But there are positive developments too, says Fisher, principal of Barry Fisher Arbitration & Mediation.

Character of employment, or job type, one of the Bardal factors used to determine notice periods, is considered less important.

“If you are a 45-year-old secretary who worked somewhere for 10 years, you got much less notice than a 45-year-old, 10-year service vice-president, and there wasn’t much of a rationale behind it,” Fisher says. “Then, starting with Bramble v Medis Health & Pharmaceutical Services Inc 46 C.C.E.L. (2d) 45a, a New Brunswick Court of Appeal case, the courts began moving toward de-emphasizing character of employment.

"What they started saying was the court should not take judicial notice of those assumptions. If there's evidence a nuclear scientist has a harder time getting a job than a salesman fine, but absent that proof, it shouldn’t be considered as a factor.”

Fisher says he is troubled by a trend that is leading to some uncertainty for predicting notice periods for short-service employees, given the nature of the job economy.

“It's easier to predict the notice period for a 15-year employee than it is for a two-year employee, and that’s a real shame because many people lose their jobs in the first couple of years,” he says.

Workers in younger generations, including millennials, will be less likely to keep the same job for 35 years like their parents did, Fisher adds.  

“It's more upsetting that short-service positions, which have a high level of unpredictability, are becoming the norm of employment. It's unfair to both employers and employees.”

Irrelevant factors are also creeping into judgments, Fisher says. Decisions are expected to follow the factors outlined in Bardal, including age, years of service, character of employment and availability of similar employment.

For example, a judge might start off a decision by calling the employee a “family man” or an “excellent employee.”

“So what?” says Fisher. “That’s not supposed to be a factor.”

But some judges seem to be using the fact someone was a hard-working or conscientious employee to justify higher notice periods, he says, while failing to take note that a good employee should have an easier time finding another job.

“This isn't logical. You should say, ‘My client is lazy, he barely got by at work. He will have a hard time getting a job,’ but I've never seen anyone say that. Ironically, that’s exactly what we should say.”

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