In Hussain v. Suzuki Canada Ltd.,1 the court awarded an employee 26 months' notice of termination, surpassing the traditional high-water mark of 24 months' notice.
Syed Hussain ("Hussain") was a long-standing employee of Suzuki Canada Ltd ("Suzuki"). He had 35 years of service and was almost 65 years old at the time of his termination. He held the position of Assistant Warehouse Supervisor, earning $48,790. He obtained general skills on the job but did not have a definable trade, and therefore, was found to be less marketable. Hussain was terminated without cause on February 15, 2011. Suzuki argued that the notice of termination should have been in the range of l2 to 18 months.
In a surprising decision, the Ontario court awarded Hussain 26 months' notice of termination and ordered Suzuki to pay almost $20,000 in interest and costs. The court held that there were "exceptional circumstances" that warranted lengthier than usual notice of termination. While each factor on its own was not considered deserving of lengthier notice, the combination of the employee's age, length of service and poor job prospects all amounted to exceptional circumstances.
The decision is noteworthy in a number of aspects:
- The court awarded a lengthy notice period, despite the non-managerial and relatively junior position held by Hussain.
- The fact that Hussain was in the "twilight if not at the end of his working years" served to increase, rather than decrease, the notice period.
- More recently, termination as a result of a restructuring due to economic issues has resulted in a reduction of notice. However, this had no effect in reducing the notice period for Hussain.
The Court also made a number of interesting findings with respect to mitigation. A plaintiff has a duty to mitigate his damages for wrongful dismissal by taking all reasonable steps to obtain alternate, comparable employment. In this case, Hussain began his applications within 3 weeks of his termination. He submitted 27 applications and only received 1 telephone interview, which was unsuccessful. Suzuki was critical of the fact that Hussain did not immediately start applying for work. The court held that Hussain should be allowed a reasonable period of time to get over the shock of his dismissal, organize his thoughts and prepare his resume. The court noted that besides the termination, not having been given any termination and severance pay, in breach of statutory obligations, would have been a shock. The court stated that it was "frankly remarkable" that in the circumstances Hussain was able to organize himself and begin seeking alternate employment so quickly.
As well, Hussain's motion for judgment reached the court before the end of the period of reasonable notice, so that the plaintiff still had a duty to mitigate his damages. Instead of awarding partial summary judgment, and having the motion returned months later in order for Hussain to prove his mitigation efforts, the court held that it was preferable to apply a contingency for re-employment. In finding that re-employment was highly unlikely, the court stated the following: The plaintiff is now 65 years old and... he is undoubtedly facing extremely stiff competition with much younger applicants for the same kind of employment.
... at 65 years of age, it cannot be seriously debated that the plaintiff is in the twilight if not at the end of his working years, and that, because of his age, his chances of re-employment in a similar or even a related industry are remote.2 The court estimated that there was only 1% chance of re-employment for Hussain, and accordingly reduced the 26-month notice period by a mere 2 weeks to 25.5 months.
In the post-mandatory retirement era, employers should consider the potential liability for terminating older and long-term employees. An attempt to save money on a severance package could end up being very costly. Employers should not necessarily assume that older employees intend to retire in considering the appropriate notice of termination. It will also be interesting to note whether other cases will follow suit in awarding in excess of 24 months' notice of termination in similar circumstances.
There are many different ways to end the employment relationship. Legal counsel can assist in considering creative options that will work for your business. For example, as an alternative to providing pay in lieu of notice, employers should consider the option of providing working notice where feasible, or a severance package can consist of salary continuance, subject to mitigation. These are but a few of the options available to employers.
1 209 ACWS (3d) 101 (OWSC).
2 Supra, at paragraphs 14-16.About BLG
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