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Employment & Labour

Is employee’s position no longer relevant in assessing notice of termination?

By Stuart E. Rudner

The Ontario Superior Court of Justice released a decision a few days ago in which a 70-year-old labourer with 20 years of service received 22 months of pay in lieu of notice. In Kotecha v. Affinia, the court followed a recent trend in which courts have rejected the notion that those with “lower level” positions should receive lesser notice periods, most notably in Di Tomas v. Crown Metal Packaging Canada LP, another relatively recent Ontario case.

The seminal decision on how notice periods are determined at common law is Bardal v. Globe and Mail Ltd., a 1960 decision in which Chief Justice McRuer stated the following:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualifications of the servant.

Although a dismissed employee’s “character of employment” has historically been one of the core factors, recent cases suggest it is becoming less relevant and that, in particular, it will not be used to limit the entitlement of non-managerial employees. Employers and employees should be aware of this trend when they assess the entitlement to notice at the time of dismissal. Of course, we always recommend that the parties use an employment agreement to clarify exactly what their rights and obligations will be, so that there is no need to waste time and money trying to assess what a court might consider to be reasonable in the circumstances.

It is also noteworthy that the decision was made on a motion for summary judgment. Clearly, our courts are becoming more willing to determine straightforward dismissal cases, where the only real issue is the notice period, without a full trial.

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