There continues to be a seemingly never-ending stream of cases
which confirm the perils of assuming that an employer's
liability for reasonable notice of termination will be capped at
one month per year of employment.
In Sciancamerli v Comtech (Communication Technologies) Ltd.,
2014 BCSC 2140, a Senior Account Executive was dismissed after just
10 months of employment and provided 1 week of pay-in-lieu of
notice. The employee filed a wrongful dismissal action and claimed
that he was entitled to 5-6 months' notice. The employer
asserted that the employee's entitlement was between 2.5 weeks
to 2 months.
The Court considered the following factors in setting the notice
Character of the employment: the position was primarily a sales
position, but it required a person with specific knowledge in the
industry. The plaintiff had a degree of specialization which
justified an increased notice period.
Age: the plaintiff was 57 years old at the time of his
termination. While the Court noted that there were cases to support
the proposition that a person in their 50s or 60s will have more
difficulty finding employment, it concluded that the detriment
which may exist because of the plaintiff's age was offset by
his experience. The Court declined to increase the notice period
based on his age.
Length of service: The Court stated that "there is no
dispute that the case law states that short-term employees are
entitled to a proportionately longer period of notice" and
concluded that the plaintiff's short service weighs in favour
of a longer notice period. (para 35)
Availability of similar employment: The plaintiff was
unemployed at the time of trial, and submitted a log of the large
number of jobs he sought across Canada and internationally. The
Court found that the plaintiff proved there was a lack of available
positions, which favoured a longer notice period.
The Court concluded based on a review of analogous cases that a
short-term employee in a similar position to the plaintiff is
typically entitled to between two and three months' notice.
However, the Court found that the plaintiff was entitled to a
longer notice period because of the specialization required for his
position and the lack of availability of similar employment. The
Court awarded the plaintiff 5 months' notice (half of his
entire period of employment).
This case again reminds employers that the determination of the
reasonable notice period is highly contextual and estimating the
notice period based on one month per year of service is often
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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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