As summer gets a little hotter, employers may begin to feel
the heat; firing employees in the summer may require an increase in
the reasonable notice period.
Feeling the Heat: New Reasonable Notice Qualifier Used by the
In the recent case of Fraser v. Canerector Inc., the
Ontario Superior Court of Justice ruled to increase the period of
reasonable notice owed to an employee by 50% based on the time of
year that his termination occurred. This decision marks a novel
addition to the question of reasonable notice. In these hot summer
months, employers might be feeling the heat if they are considering
making any staff changes.
While it has long been clear that reasonable notice is to be
determined on a case-by-case basis, until now this consideration
heavily relied on the factors laid out in Bardal v. Globe &
Mail Ltd.Traditionally, these factors have included the
age of the employee, the position which he/she had held at the
company, the length of his/her employment and his/her compensation
prior to termination. Post-Fraser,however, it now
seems that "time of year" can be added to this
Reasonable Notice increased by 50%
In this case, Mr. Fraser was a 46 year old man who had been
working as a senior executive for a company for a period of 34
months with a salary of $205,000 per year plus benefits. He was
dismissed in June 2014. The court held that due to the fact that he
was dismissed in the summer, a time in which it would likely be
more difficult to secure new employment, his reasonable notice
period should be substantially increased. The Court noted that,
using the typical factors for determining reasonable notice, Mr.
Fraser would only have been entitled to a notice period of 3
months. However, with the additional consideration of the timing of
the termination, it concluded that the proper term of reasonable
notice was an extended 4.5 months.
Illuminating his reasoning, Justice Dunphy explained that
because Mr. Fraser had been fired in June, it was "quite
foreseeable that hiring decisions at his level might have needed to
be delayed somewhat due to the summer months in order to account
for vacation schedules of key decision-makers." In other
words, had Mr, Fraser been terminated during the winter, he would
not have experienced the negative impact of a slow summer while
searching for a new position.
The Court did not explicitly discuss if the "time of
termination" would have a similar effect on non-management and
clerical positions, but a key component of this decision was the
suggestion that the persons who would likely hire Mr. Fraser would
be unavailable during the summer months. This suggests that the
"seasonal factor" will be of greater consideration when
considering the termination of a senior, executive, or management
What about mitigation efforts?
Notably, although Mr. Fraser was able to secure new employment
in a period of only 10 weeks, the Court still considered the impact
of the termination timing in its decision. As such, there has now
been a clear signal that any factors affecting a person's
ability to secure new and/or similar employment should be
considered and reflected in the determination of reasonable notice,
notwithstanding successful mitigation efforts.
Thinking of firing a senior employee this summer? Think
With case-by-case determinations, determining reasonable notice
remains a fluid issue. The "rule of thumb" approach to
reasonable notice of one month per year of service has been
repeatedly rejected by the courts, and this case underscores how
subjective this determination can be.
In the termination context, the first line of defence is always
a properly drafted employment agreement with valid and enforceable
termination provisions; however, absent such an agreement,
employers must assess their exposure and potential reasonable
notice damages. With the Fraser decision now in play,
employers may want to carefully consider the timing in which they
choose let certain employees go, as warmer weather may mean
increased notice requirements, and as such, increased liability for
Prepared with the assistance of Danielle Levine, Summer Student
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.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).