InHussain v. Suzuki Canada
awarded an employee 26 months' notice of termination,
surpassing the traditional high-water mark of 24 months'
Syed Hussain ("Hussain") was a long-standing employee
of Suzuki Canada Ltd ("Suzuki"). He had 35 years of
service and was almost 65 years old at the time of his termination.
He held the position of Assistant Warehouse Supervisor, earning
$48,790. He obtained general skills on the job but did not have a
definable trade, and therefore, was found to be less marketable.
Hussain was terminated without cause on February 15, 2011. Suzuki
argued that the notice of termination should have been in the range
of l2 to 18 months.
In a surprising decision, the Ontario court awarded Hussain 26
months' notice of termination and ordered Suzuki to pay almost
$20,000 in interest and costs. The court held that there were
"exceptional circumstances" that warranted lengthier than
usual notice of termination. While each factor on its own was not
considered deserving of lengthier notice, the combination of the
employee's age, length of service and poor job prospects all
amounted to exceptional circumstances.
The decision is noteworthy in a number of aspects:
The court awarded a lengthy notice period, despite the
non-managerial and relatively junior position held by Hussain.
The fact that Hussain was in the "twilight if not at the
end of his working years" served to increase, rather than
decrease, the notice period.
More recently, termination as a result of a restructuring due
to economic issues has resulted in a reduction of notice. However,
this had no effect in reducing the notice period for Hussain.
The Court also made a number of interesting findings with
respect to mitigation. A plaintiff has a duty to mitigate his
damages for wrongful dismissal by taking all reasonable steps to
obtain alternate, comparable employment. In this case, Hussain
began his applications within 3 weeks of his termination. He
submitted 27 applications and only received 1 telephone interview,
which was unsuccessful. Suzuki was critical of the fact that
Hussain did not immediately start applying for work. The court held
that Hussain should be allowed a reasonable period of time to get
over the shock of his dismissal, organize his thoughts and prepare
his resume. The court noted that besides the termination, not
having been given any termination and severance pay, in breach of
statutory obligations, would have been a shock. The court stated
that it was "frankly remarkable" that in the
circumstances Hussain was able to organize himself and begin
seeking alternate employment so quickly.
As well, Hussain's motion for judgment reached the court
before the end of the period of reasonable notice, so that the
plaintiff still had a duty to mitigate his damages. Instead of
awarding partial summary judgment, and having the motion returned
months later in order for Hussain to prove his mitigation efforts,
the court held that it was preferable to apply a contingency for
re-employment. In finding that re-employment was highly unlikely,
the court stated the following: The plaintiff is now 65 years old
and... he is undoubtedly facing extremely stiff competition with
much younger applicants for the same kind of employment.
... at 65 years of age, it cannot be seriously debated that the
plaintiff is in the twilight if not at the end of his working
years, and that, because of his age, his chances of re-employment
in a similar or even a related industry are remote.2 The
court estimated that there was only 1% chance of re-employment for
Hussain, and accordingly reduced the 26-month notice period by a
mere 2 weeks to 25.5 months.
In the post-mandatory retirement era, employers should consider
the potential liability for terminating older and long-term
employees. An attempt to save money on a severance package could
end up being very costly. Employers should not necessarily assume
that older employees intend to retire in considering the
appropriate notice of termination. It will also be interesting to
note whether other cases will follow suit in awarding in excess of
24 months' notice of termination in similar circumstances.
There are many different ways to end the employment
relationship. Legal counsel can assist in considering creative
options that will work for your business. For example, as an
alternative to providing pay in lieu of notice, employers should
consider the option of providing working notice where feasible, or
a severance package can consist of salary continuance, subject to
mitigation. These are but a few of the options available to
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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