In the world of workplace law we often say that, absent exceptional circumstances, the greatest notice period that any wrongfully dismissed employee could be awarded by an adjudicator is 24 months. But what are those exceptional circumstances? Years ago, we blogged about Dawe v. The Equitable Life Insurance Company of Canada, a case in which the Ontario Court of Appeal overturned the trial judge’s award of 30 months of reasonable notice for a terminated employee, reducing the final notice period to 24 months. Recently, the Ontario Court of Appeal released a decision, Currie v. Nylene Canada Inc. (“Currie”), affirming the trial judge’s assessment of damages in the amount of 26 months of reasonable notice for the wrongfully dismissed employee, Ms. Currie (“Ms. Currie”). Below we will look at the factors the Court considered in rendering this judgment.
Length of Service
The appellant employer in Currie, Nylene Canada Inc. (“Nylene”), argued that the trial judge erred in assessing Ms. Currie’s length of service using the start date of 1979. It was Nylene’s position that the start date of June 2017 should have instead been used, which was when Ms. Currie retired then was rehired, until December 2018.
The Court of Appeal disagreed, stating, amongst other things, that Ms. Currie never provided Nylene with any notice of resignation or retirement and that the retirement/re-hiring proposed by Nylene was for the sole purpose of allowing Ms. Currie access to her pension plan and Ms. Currie relied on Nylene’s representation that her tenure with Nylene would remain unaltered.
The Court found that the personal factors considered by the trial judge in his decision supported his award of 26 months of reasonable notice. Those factors included the following:
- Ms. Currie began working for Nylene when she left high school at age 18, first as a twisting operator, eventually rising to become the Chief Operator reporting to the Shift Leader.
- Ms. Currie was terminated at age 58.
- She had specialized skills and her computer skills were also limited. As such, the trial judge was unconvinced she would be able to secure alternative employment.
- Her skills, based on her experience working for Nylene and its predecessors in a single environment, were not easily transferable, especially considering the changes in the employment landscape since her entrance into the workforce in the 70s.
- Her termination from Nylene was “equivalent to a forced retirement”, in consideration of her age, limited education, and skillset.
Advice for Employers
Only in exceptional circumstances will a reasonable notice period of more than 24 months be awarded. Given the rarity of these situations, there exist only a handful of cases in which such a lengthy notice period has been considered. The law is not 100% settled that reasonable notice periods in excess of the general topline of 24 months will be available to employees, whether by reason of long service or otherwise. In any event, every employer should be careful when putting together a termination package for an employee and consult a lawyer to determine how best to prepare such a package so as to reduce the risks, time, and expense of litigation.
If you need one-on-one advice from a lawyer to assist you with navigating terminations, please get in touch for a consultation. For those employers looking for general templates and guides for employment contracts, termination letters and releases, we have a great DIY toolkit – The Workplace Law Bundle!