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When Notice is Insufficient

The Superior Court of Justice recently revisited the issue of what constitutes “notice of termination” and found that notice must be “clear and unambiguous” in order to suffice. Although this is by no means “new law,” the issue is worth revisiting as reasonable notice is a staple of employment law. 

Facts

The Plaintiff—a very sympathetic 71 year-old immigrant—had been employed by the Defendant for 12 years as a security guard. On November 24, 2014, the principal owner of the Defendant gave notice to the Plaintiff that, as a result of restructuring, the Plaintiff’s services would no longer be required as of January or February of 2015. The Plaintiff continued to work for the Defendant until July 24, 2015, when he was officially terminated and given a Record of Employment. The Plaintiff sued for wrongful dismissal and for damages from the mental distress he experienced as a result of the termination. He won on both grounds.

Our Thoughts

Employers must provide clear and unambiguous notice in order to fulfill their duty to provide reasonable notice. In this case, the court found that the employer had not provided reasonable notice despite the fact that they notified the Plaintiff on numerous occasions that his employment would be terminated as a matter of course. The Court found that the Defendant was unclear in respect of the specific date of termination. Moreover, the Plaintiff continued working for the Defendant for over 5 months after he was told he would be terminated. Coupled with the fact that many of the Plaintiff’s colleagues were offered employment by the Defendant elsewhere, the Court found that “A reasonable person might well conclude that, based on the Defendant’s actions, his employment would continue.” As such, the Defendant did not fulfill their duty to put the Plaintiff on proper notice so that he may begin looking for another job. Further, the Court found that, by failing to give the Plaintiff fresh notice and severance, the Defendant acted unfairly and in bad faith, and was therefore responsible for moral damages.

This decision highlights the importance of providing clear and decisive notice when seeking to terminate the employment agreement, especially when dealing with vulnerable employees. Failure to do so will expose employers to liability not only for wrongful dismissal, but also for moral damages for bad faith and unfair conduct. For employers experiencing a restructuring where a high volume of employees may be terminated or offered new employment contracts, it becomes even more important to ensure the proper due diligence has been conducted.
 
See: Bertram Thambapillai v Labrash Security Services Ltd. 2016 ONSC 6068
 
The above article is for general information purposes only and does not constitute legal advice. If you have concerns with regard to the foregoing issues, please make an appointment with one of our lawyers or a qualified legal practitioner elsewhere.