We have written a number of times regarding cases that
significantly depart from the so-called one month per year of
service rule of thumb. Yet another case has illustrated the risk an
employer runs in assuming their liability will be capped at one
month per year of service.
In Ellerbeck v KVI Reconnect Ventures, 2013 BCSC 1253, the
British Columbia Supreme Court concluded that an employee with 3.5
years of service was entitled to 10 months of notice. Ellerbeck, a
certified management accountant, was employed as a corporate
controller. She was dismissed the day before her 60th birthday and
provided with 10.5 weeks of pay in lieu of notice. She brought an
action for wrongful dismissal and took the position that she was
entitled to 12 months of notice. The employer argued, among other
things, that the Court should apply the rule of thumb of one month
notice per year of service.
The Court found that Ellerbeck held a senior level management
position and that, due to her age, she faced greater barriers in
obtaining a similar position. Based on those factors and a review
of the case law, the Court concluded that Ellerbeck was entitled to
a notice period of ten months.
This case again affirms that courts are prepared to depart
significantly from the purported one month per year of service
"rule". The determination of the appropriate notice
period is very contextual and there is no mathematical formula that
can be applied to with certainty. Employers would be advised to
obtain legal advice on the potential notice period that an employee
could be awarded in order to assess the risks before dismissing an
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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