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The character of an employee’s employment is one of the significant factors that the court will look at when determining how much termination notice an employee is entitled to. As it stands, the courts has recognized that terminated employees who held highly specialized positions are entitled to an elongated notice period. For example, in the case of Love v Acuity Investment Management Inc., 2011 ONCA 130, a 50 year-old Vice-President with 2.5 years of service received 9 months’ notice, which was significantly more than 1 month per year of service.
However, not all terminated employees will benefit from this presumption as they did not hold highly specialized positions while employed. This case review of Drysdale v. Panasonic Canada Inc., 2015 ONSC 6878 explores how the courts will treat a non-specialized worker when determining notice entitlement.
Mr. Drysdale was a former employer of the defendant who was terminated due to company restructuring and outsourcing labour. At the time of termination, Mr. Drysdale was 58 years old and had been working with the company for 23 years.
At the time of termination, Mr. Drysdale was provided his minimum entitlements under the Employment Standards Act, 2000, a total of approximately 31 weeks’ pay in lieu of notice.
Character of employment has traditionally played a more significant role in determining how much notice an employee is entitled to at the time of termination. In Cronk v. Canadian General Insurance Co., 1995 CanLII 814 (ON CA), the court of appeal established a 12 month hard limit to which clerical and unskilled labourers are entitled to. This decision dealt a heavy blow to employees with a limited skill set, particularly those who had been loyal to their employers for an extended period of time.
However, the courts have since moved away from this hard limit. Take for instance the decisions in Minott v. O’Shanter Development Company Ltd., 1999 CanLII 3686 (ON CA) and Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, wherein it was judicially noted that character of employment plays a smaller role in modern society when determining reasonable notice periods. Utilizing this principle, the plaintiffs in these cases were awarded in excess 12 months’ notice by the courts, specifically, Mr. Di Tomaso was awarded 22 months’ pay in lieu of notice.
In this case, the court analyzed Mr. Drysdale’s employment. As a labourer, he received $60,000.00 per year, plus benefits and pensions. He would be unlikely to find a similar, non-managerial position with that much pay, especially at 58 years of age. Having assessed his tenure, age, his character of employment and the available of comparable employment, the court awarded Mr. Drysdale 22 months’ pay in lieu of notice.
The key lesson to take away from these cases is that ‘unskilled’ employees are no longer penalized by the character of their employment when determining an appropriate notice period. Furthermore, if an employee is in a fairly well paid position, it may be a factor when the courts assess the available of comparable employment. If you have any questions regarding your employment, contact Monkhouse Law today for a free consultation.