Michael Ford (post until Oct. 31/19)

Lerners LLP: Paul Brooks

Availability of Similar Employment in Determining Reasonable Notice

Lerners LLP

By Paul Brooks

What role does availability of similar employment play in determining reasonable notice? This was one of the issues at stake in the recent case of Strik v EXP Services Inc.

In Strik, the plaintiff was hired by the defendant in 2012 as a geotechnical technician. The defendant was in the business of providing engineering consulting services. Just under two years later, the defendant advised the plaintiff that he was being terminated without cause. He was provided with two weeks’ pay in lieu of notice.

The plaintiff sued for wrongful dismissal. His position was that two weeks’ pay was insufficient although it met the statutory requirements under the Employment Standards Act, 2000, S.O. 2000, c. 41. The defendant pleaded that sufficient notice had been provided.

The trial judge cited Wilson v Solis Mexican Foods Inc., in reviewing the factors to be considered in determining the period of reasonable notice. Although the plaintiff had been employed for less than two years, the trial judge noted that does not always minimize the length of notice.

The plaintiff was relatively young and therefore his age would not have been expected to stand in the way of him finding other employment. However, the evidence was clear that the defendant knew there was not as much employment available in this field as in the past. This was in fact the reason given for the defendant terminating the plaintiff’s position - there had been a downturn in the amount of work. As it turned out, the plaintiff was not able to find other employment in the field. Therefore, the trial judge held that the availability of similar employment should play a factor in determining the reasonable notice period and awarded the equivalent of four months’ salary. The trial judge noted that the “rule of thumb” approach to calculating reasonable notice, whereby one month of notice was allowed each year of service, had been rejected by the courts.

The Strik decision shows that employers should be wary when trying to determine the length of the reasonable notice period. Courts consider a variety of factors and there are times when short length of service will not be determinative of the appropriate period of notice.

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