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 responsibility".
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 notice.
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.
© Copyright 2011 McMillan LLP
