Nov 25

Ontario Superior Court Decided Previous Experience Mattered When Determining Common Law Notice

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In Chin v. Beauty Express Canada Inc., 2022 ONSC 6178 (“Beauty Express”), the Ontario Superior Court considered an employee’s service with her previous employer in calculating her total years of service.

The Plaintiff was a part-time aesthetician at Beauty Express, a salon located in The Bay. She began working for Beauty Express in 2013 after her former employer, Premier Salons, went bankrupt. She had been working with Premier Salons since 1999. Her job with Beauty Express was practically identical to her job with Premier Salons. The Plaintiff worked for Beauty Express from 2013 until her termination in 2019. She was provided approximately 11 weeks’ working notice.

The Plaintiff and Defendant, Beauty Express, agreed that the Plaintiff had only six years of service. The Plaintiff began working in 2013 and was terminated in 2019. The parties further agreed that Premier Salons’ bankruptcy in 2013 was a constructive dismissal which ended the Plaintiff’s employment. The Plaintiff therefore had no continuous employment between Premier Salons and the Defendant, Beauty Express.

Ultimately, Justice Morgan considered the Plaintiff’s work experience at Premier Salons in determining the appropriate amount of notice the Defendant owed the Plaintiff.

Evaluating Length of Service

An employee’s length of service is one factor courts will consider when determining what constitutes reasonable notice of termination. Other relevant factors include the employee’s age, the nature of their employment, and availability of similar work in the marketplace. These factors are referred to as the Bardal factors, after the decision that introduced them: Bardal v. Globe & Mail Ltd.

In Beauty Express, the Plaintiff was 69 years old at the time of termination and was working as an aesthetician for the Defendant. However, her length of service was under dispute.

The Plaintiff argued that her length of service was 20 years based on her combined time at Premier Salons and with the Defendant. In the Plaintiff’s view, her experience with Premier Salons should be considered because her job functions were identical, and she transitioned seamlessly into working for the Defendant. However, the Defendant argued that the length of the Plaintiff’s employment was 6 years based solely on her time with the Defendant.
Justice Morgan determined the Plaintiff was entitled to half of the notice she would have received as a 20-year employee.

According to Justice Morgan, the length of the Plaintiff’s employment with Premier Salons was important as it was her tenure that allowed her to bring such experience to the Defendant. Justice Morgan clarified that the nature of the employee’s work is of significance. The Defendant incurred a significant advantage as the Plaintiff’s job required specific and extensive training and the Plaintiff already had this experience at the time of her hiring, thereby saving the Defendant time and money in not having to train her.

Justice Morgan determined the Plaintiff would be entitled to 10 months’ notice or pay in lieu of notice, less the approximately 3 months of working notice she had already received.

Important Takeaway for Employees

Courts may consider an employee’s length of service and experience with a previous employer. As stated by Justice Morgan, a job that requires extensive and specialized training is distinct from one that requires minimal training and is generic in nature. Due to Justice Morgan’s reasoning, it appears that the courts may consider the experience that an employee brings to an employer when determining reasonable notice periods upon termination. However, this would be highly dependent on the nature of the job.

Speak to an Employment Lawyer

If you believe you have been wrongfully terminated, you should consider speaking with an employment lawyer. The lawyers at Monkhouse Law have experience in reviewing severance packages and employees’ entitlements. We can help ensure you do not miss out on any of your legal entitlements.