A very recent case from British Columbia provides notice to
employers that they should not underestimate what a court may award
as reasonable notice to a long-service employee simply because the
employee held a modest, lower level type job.
In Systad v. Ray-Mont Logistics Canada Inc., 2011 BCSC
1202, the British Columbia Supreme Court emphatically ruled that
"character of employment" (i.e. the job held by the
employee) should not be given "undue weight" in
determining the appropriate notice period and is merely
"another matter" to be taken into account together with
the other relevant factors of age, length of service and
anticipated difficulty in finding replacement employment, in
determining the reasonable notice period.
Mr. Systad, a 65 year old employee with no supervisory duties,
had been working as a truck driver for the employer Ray-Mont
Logistics Canada Inc. at the time of termination. The court granted
18 months notice to Mr. Systad after 18 years of service.
The employer argued before the court that the statutory maximum
of eight weeks notice under the B.C. Employment Standards
Act was appropriate under the circumstances, given the
"unskilled" nature of Mr. Systad's work.
Alternatively, the employer argued that a notice period of 10
months was reasonable, given the fact that Mr. Systad did not hold
a supervisory or managerial position.
The court had no difficulty in dismissing the employer's
first argument that the eight weeks statutory notice period under
the Employment Standards Act was appropriate, given that
Mr. Systad could not be described as a "young, low service
employee with an entry-level job".
The court also rejected the employer's submission that the
"concept" of a one month notice period for each year of
service should be reserved for those employees whose
"character of employment" carries with it more
responsibility and seniority. The court concluded that there was no
evidence to suggest that an employee with Mr. Systad's
responsibilities would have an easier time finding a new job than
an employee with more senior duties and adopted the approach from a
decision of the New Brunswick Court of Appeal which held that
giving undue attention to the character of employment represents
"antiquated social values" and is "antithetical to
the law's ultimate goal namely egalitarian justice".
Accordingly, the court concluded that the reasonable notice period
was 18 months.
The decision of the B.C. Supreme Court in Systad stands in stark
contrast to another recent decision of the same court in
Waterman v. IBM Canada Limited, 2010 BCSC 376.
In Waterman the B.C. Supreme Court held that a
long-service employee was not entitled to an upper limit notice
award because the employee held a non-supervisory / non-managerial
position and "there were several levels of employment between
himself and top management". The court in Waterman
held that – all other things being equal –
persons in managerial or supervisory roles are generally entitled
to greater notice than employees at the "lower end of
It is difficult – if not in fact impossible
– to reconcile these two recent conflicting B.C. cases.
However employers will be well advised to heed the clear warning in
Systad that "character of employment" may well
not be a determinative factor in assessing the period of reasonable
The foregoing provides only an overview. Readers are
cautioned against making any decisions based on this material
alone. Rather, a qualified lawyer should be consulted.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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