The lower court judge had awarded teachers who had their
employment terminated from their school 12 months of pay in lieu of
notice. However, the judge reduced this by half, to 6 months, in
large part due to the financial circumstances that the school was
in. The lower court judge cited a passage from a prior decision
that noted that "The law does not ignore the dilemma of the
employer." The Court of Appeal made it quite clear that the
law does in fact ignore the (financial) dilemma of the
The Court of Appeal restated the reason for reasonable notice or
pay in lieu thereof:
"Although employees may be dismissed without cause,
'employment contracts for an indefinite period require the
employer, absent express contractual language to the contrary, to
give reasonable notice of an intention to terminate the contract if
the dismissal is without cause' Reasonable notice allows
employees a reasonable period of time to find replacement work.
Damages for dismissal without reasonable notice are designed to
compensate employees for the losses incurred during the period of
reasonable notice – the amount of wages and benefits that
they would have earned had they been permitted to serve out the
as well as the factors that go into determining the appropriate
amount of notice:
"The calculation of the notice period is a
fact-specific exercise. The relevant factors are set out in Bardal
v. The Globe & Mail Ltd. (1960), 24 D.L.R. (2d) 140 (Ont.
H.C.), at p. 145, and focus on the circumstances of the employee:
the character of their employment, their length of service, their
age, and the availability of similar employment, having regard to
their experience, training, and qualifications."
The lower court judge had used the "character of
employment" factor in justifying a reduction of the notice
period by half due to the school's financial hardship. The
Court of Appeal rejected this approach noting that the character of
employment is concerned with the circumstances of the wrongfully
dismissed employee and not with the circumstances of the
While one could argue that consideration ought to be given to
the employer's financial situation, such an approach is
inconsistent with the philosophical reasoning behind the obligation
to provide reasonable notice or pay in lieu thereof.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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