What role does availability of similar employment play in
determining reasonable notice? This was one of the issues at stake
in the recent case of Strik v EXP Services Inc.
In Strik, the plaintiff was hired by the defendant in
2012 as a geotechnical technician. The defendant was in the
business of providing engineering consulting services. Just under
two years later, the defendant advised the plaintiff that he was
being terminated without cause. He was provided with two weeks'
pay in lieu of notice.
The plaintiff sued for wrongful dismissal. His position was that
two weeks' pay was insufficient although it met the statutory
requirements under the Employment Standards Act, 2000,
S.O. 2000, c. 41. The defendant pleaded that sufficient notice had
The trial judge cited Wilson v Solis Mexican Foods
Inc., in reviewing the factors to be considered in determining
the period of reasonable notice. Although the plaintiff had been
employed for less than two years, the trial judge noted that does
not always minimize the length of notice.
The plaintiff was relatively young and therefore his age would
not have been expected to stand in the way of him finding other
employment. However, the evidence was clear that the defendant knew
there was not as much employment available in this field as in the
past. This was in fact the reason given for the defendant
terminating the plaintiff's position - there had been a
downturn in the amount of work. As it turned out, the plaintiff was
not able to find other employment in the field. Therefore, the
trial judge held that the availability of similar employment should
play a factor in determining the reasonable notice period and
awarded the equivalent of four months' salary. The trial judge
noted that the "rule of thumb" approach to calculating
reasonable notice, whereby one month of notice was allowed each
year of service, had been rejected by the courts.
The Strik decision shows that employers should be wary
when trying to determine the length of the reasonable notice
period. Courts consider a variety of factors and there are times
when short length of service will not be determinative of the
appropriate period of notice.
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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