The dismissal of a long-term employee who is entitled to common
law reasonable notice can result in significant liability for an
employer. As the determination of the appropriate notice period is
contextual, it can be difficult for an employer to accurately
assess their potential liability. Typically, an employer can be
confident that the employee's notice entitlement will be
"capped" at 24 months. However, employers should be aware
that courts can award more than 24 months in extraordinary
Markoulakis v Snc-lavalin Inc., 2015 ONSC 1081, is a
recent case in which the Court found that there were extraordinary
circumstances to go beyond 24 months' notice. In that case, the
former employee (a Senior Civil Engineer) had been employed for
nearly 41 years and was 65 years old at the time of termination. He
took the position that he was entitled to 30 months of notice, but
the employer argued that 34 weeks (the amount it had already paid
the plaintiff) was sufficient.
The Court found that, based on the circumstances of the case,
the former employee was entitled to 27 months of notice. The Court
stated that "[t]he fact that the Plaintiff is over 65, has
more than 40 years of service with the Defendant, his only
employer, is in my view, exceptional." (para 37)
This case affirms that, if an employer dismisses a long-term,
older employee (particularly if they are over 60), the employer
should be prepared for the risk that a court could award more than
24 months of notice.
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).