When an employee is wrongfully dismissed from their job, one of the first questions they may have is about termination pay. Most employees want to know if they are entitled to termination pay when they have been fired and, if so, how much termination pay they can claim. This blog seeks to look deeper into how age can be a huge factor in how much notice and therefore termination pay a dismissed employee may be entitled to.

Age and Reasonable Notice

To remind our readers, when an employee has been dismissed from their job without cause, the employer must provide the employee with either written notice of the termination, termination pay in lieu of that notice or a combination of both. Termination pay is simply monetary compensation to the employee in lieu of notice of the termination.

The amount of termination pay is determined in two ways. The first way to determine termination pay is under statute. Ontario’s Employment Standards Act, 2000 (“ESA”), sets out what the employee’s minimum notice period should be statutorily. The ESA’s minimum entitlements to notice are not based on age but solely on how long an employee’s being working for an employer.

The second way is under the common law. Age becomes a factor in the length of a notice period under the common law. The general rule of thumb is that an employee is entitled to receive a greater notice period the longer they have been working with the employer and the older that employee is. Ontario courts will typically award an employee with pay in lieu of reasonable notice between as low as two weeks of notice and up to 24 months’ common law notice depending on the various factors we have mentioned above. In exceptional circumstances, Ontario courts will even award notice periods to dismissed employees in excess of 24 months.

So, the bottom line here is that a dismissed employee who is in their 20s can expect to have a significantly shorter notice period than a dismissed employee who was in their 50s or 60s upon dismissal. This has been seen in many employment law cases that have been heard in Ontario courts and justifications for this difference is simply because it is much harder to find alternative employment if you are older. For instance, an older dismissed employee may not have the flexibility, available training opportunities or fluidity of skillsets that a younger employee may have. As such, it is harder for them to give another job.

However, not everyone will be able to be entitled to a notice period under the common law. Common law notice may be greatly reduced or even eliminated altogether depending on the contents of the written provisions of an employment contract such as whether the employment contract has a valid termination clause.

Age and Mitigation

Regardless of age, an employee still has a duty to mitigate. The duty to mitigate means that upon dismissal an employee has a common law legal duty to take reasonable steps to “mitigate” their damages. In the context of employment law, an employee who is taking reasonable steps to mitigate their damages means that the employee should look for alternative employment upon dismissal.

However, Ontario courts are generally more lenient in this duty to mitigate for older employees. This is because, similarly to what was set out above in terms of older employees receiving a greater notice period than a younger employee, older employees generally have a more difficult time in finding appropriate alternative employment upon dismissal.

Age Discrimination in the Workplace

Employers in Ontario cannot discriminate against employees because of age.  This is because age is a protected ground under the  Human Rights Code, 1990 (“Code”) and if an employer acts in a way that infringes the Code it could face serious legal consequences as a result. For example, age discrimination in the workplace may result in a human rights complaint against the employer. The employee may also bring a civil claim against the employer for common law and statutory damages in a wrongful dismissal lawsuit. Depending on the circumstances, the employee may also be entitled to punitive and moral damages.

For more information about this topic, please review our blog entitled Age in the Workplace.

How can Zeilikman Law help?

If you are an employee who has questions about age and termination pay upon dismissal, you should contact an employment lawyer. Our employment lawyers at Zeilikman Law routinely help employees review their case to ensure that their rights to the correct amount of compensation in form of termination pay or severance pay are protected. We also help employers determine their obligations to employees upon termination.

Zeilikman Law can be contacted at (905) 417-2227 or online here to schedule your own confidential consultation with one of our employment lawyers.