Character of Employment and Calculating the Reasonable Notice Period
26 Jan 2016
In employment law, when an employee is wrongfully terminated, the court will look at a variety of factors to determine the length of the notice period an employee is entitled to. The character of employment is one of those factors. The character of employment is the unique qualities that each job has (such as whether or not the job required the employee to have some sort of special skill). Generally, Ontario courts have determined that when an employee utilizes a special skill in their employment they may deserve a greater notice period than another employee who does not despite the fact that both employees had the same or similar length of service with the employer.
In Drysdale v. Panasonic, 2015 ONSC 6878, the Ontario Superior Court of Justice awarded 22 months notice to a 58 year old warehouse worker with almost 23 years of service. This case looked at how Ontario Courts may look at a notice period where the character of employment does not include specialized skills on behalf of the employee.
In terms of calculating the appropriate reasonable notice period the Court explained that in accordance with the usual "Bardal factors" the following factors must be considered: character of employment, length of service, age of employee, and the availability of similar employment (considering the employee’s experience, training, and qualifications).
The Court found that the appropriate reasonable notice period is that of twenty-two (22) months. The plaintiff, Drysdale, being fifty-eight (58) years old was deserving of a longer reasonable notice period to accommodate the "competitive disadvantage" that his age presented as per McKinney v. University of Guelph 1990 CanLII 60 (SCC).
The plaintiff was a high paid physical labourer, however, the court mentioned that the nature of his position is not crucial to the case because as per DiTomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469 (CanLII) the factor of character of employment as being one of a rather low level is today a factor of declining relative importance. However, the fact that Drysdale was paid rather highly for his position made it doubtful that other positions with a similar salary were available, as such a longer notice period than that which Panasonic suggested was required.
The length of a reasonable notice period is a malleable issue and one that is subject to change not only with the individual facts of each case but also with the overall development of employment law – in certain respects, it is a moving target.
Whether you are an employee facing termination or an employer seeking to terminate an employee, there are numerous factors and comparable cases that set out the extent of the law and what each employee deserves upon termination. Character of employment will be a factor in considering the reasonableness of notice but employees with "non-specialized" skills or "general labourers" are no longer necessarily at the lower end of reasonable notice given the development of the case law. Other issues such as salary or wages, length of service and age may be more important factors to consider.
Our clients come from various professional and occupational backgrounds from across the GTA, North York, Vaughan, Richmond Hill, Aurora and beyond. If experience teaches us one thing is that it is crucial to consult an experienced employment law professional in order to assess the facts of your case because you may be entitled to more than first expected.
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.