Employers seeking advice about what notice period or pay in lieu
of notice should be given to an employee who is not being dismissed
for cause are often told by their legal advisors that there are
four main factors to consider: the character of the employment, the
length of service, the age of the employee and the availability of
similar employment having regard to the experience, training and
qualifications of the employee. This article will focus on the
first of these factors.
Most legal advisors would traditionally advise employers that,
all other things being equal, an employee who was "higher up
the chain" would be entitled to more notice than an employee
in a less senior position. The decision in Systadv.
Ray-Mont Logistics Canada Inc., 2011 BCSC 1202, if
followed by other judges, will cast doubt on that traditional
Systad was 65 years old and had been an employee of Ray-Mont
Logistics Canada Inc. for 18 years. At the time of his dismissal,
he had no managerial responsibility, but did supervise new drivers
on specialized container equipment. Upon dismissal, he was provided
with eight weeks' pay in lieu of statutory notice, as
required under the Employment Standards Act.
The main issue of the lawsuit was the amount of common law pay
in lieu of notice that Systad was entitled to. He maintained that
he was entitled to one month per year of service, whereas the
employer held that this rate was reserved for those employees whose
"character of employment" carried with it more
responsibility and seniority, the theory being that senior
employees required more time to find suitable alternative
employment. Mr. Justice Burnyeat disagreed with the employer and
found that the reasonable notice period for Systad was 18 months.
His rationale for disregarding the employer's submission on
the "character of employment" was that it represents
antiquated social values and is antithetical to the law's
ultimate goal, namely egalitarian justice.
In support of his rationale, the judge relied on the New
Brunswick Court of Appeal's decision in Bramble v. Medis
Health. In that case, the Court noted that the theory that junior
employees had an easier time finding work had been empirically
challenged and represented antiquated social values. Treating
junior employees less favourably based on the character of their
employment undermined, without justification, their self worth.
What remains to be seen is how many B.C. judges will follow Mr.
Justice Burnyeat's rationale. If it is followed, one thing
is certain: junior employees will be entitled to longer notice
periods than have typically been awarded before. The additional
cost involved will be borne by employers.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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