Is Reasonable Notice for Labourers and Clerical and
Non-Managerial Employees capped at 12 months? Ontario Courts have
answered - and the answer is no.
"Character of employment" is one of the four
cornerstone factors in determining the reasonable notice
entitlement of a wrongfully dismissed employee.
Traditional Position on Character of Employment as a Factor of
Traditionally, there had developed a practice and understanding
that specialized, skilled, and managerial employees will receive
longer notice periods on the basis of the character of their
employment. Contrastingly, labourers, clerical workers, and
non-managerial employees would often be entitled to notably shorter
reasonable notice periods on the same grounds. The courts had
historically reasoned that there are less positions available for
an individual with a specialized skills set and thus it would be
more difficult for such individuals to find alternative, but
similar, employment. On this reasoning, a longer notice period is
Judicial Trend – Character of Employment of Declining
In the past few years, the courts have begun to move away from
this traditional position, and have underscored that the character
of employment is of declining importance in the determination of
reasonable notice. In September 2015, the Ontario Superior Court
turned this presumption on its head in Zoldowski v. Strongco
Corporation, where the Court found that an unskilled employee
would have more difficulty finding new employment and
"employees with a particular marketable skill are more
valuable to employers and should have an easier time finding
More recently, in Drysdale v. Panasonic Canada Inc.,
the Ontario Superior Court awarded a non-specialized labourer 22
months of payment in lieu of reasonable notice.
In this case, the employee, Mr. Drysdale had worked with the
company for 23 years and at the time of his termination, he was 58
years old. In addition, Mr. Drysdale's annual compensation
included $60,000 in salary, plus benefits and pension
Mr. Drysdale was a shipper in the employer's warehouse and
his duties included:
unloading and loading trucks using forklifts, pallet trucks,
performing physical inventory counts;
internal transportation of received goods and supplies;
completing paper work and electronic transactions associated
with the receipt and movement of products; and
performing general safety inspections of material, handling
equipment consistent with certification training
The Court discussed Mr. Drysdales' character of employment,
describing the job as one of "physical labour" and a
"non-managerial position". However, the Court then went
on to say that the character of employment is a "factor of
declining relative importance". Most importantly for
employers, the Court echoed the ratio in Zoldowski v. Strongco
Even if the plaintiff could be considered a low
level unskilled employee, it does not mean that he would
necessarily have an easier time finding alternative employment than
would a person in a managerial
It appears the traditional presumption that highly skilled
employees will have a more difficult time finding alternative
employment has now been firmly turned on its head, and the courts
continue to recognize that employees in labour intensive, clerical
and non-managerial positions may also face equal if not greater
difficulty obtaining new employment.
The Take-Away for Employers
When considering what will constitute reasonable notice for
labourers, clerical workers, and non-managerial employees, do not
rely on the traditional notion that reasonable notice for
low-skilled employees is capped around 12 months. Recent case law
has set new precedents and continues to underline that the
character of employment, as an independent factor, is one of
decreasing significance in the determination of reasonable
1 at para 14.
2 at para 5.
3 at para 15.
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