We have stated on prior occasions that, in the absence of a contractual term stating otherwise, a dismissed employee may be entitled to reasonable notice of termination at common law or pay in lieu thereof. To determine how long the notice should be, courts will usually look at the employee’s age, length of service, character of employment and the prospect of obtaining alternative employment in the future.
It has been on the mind of many employment lawyers as to what impact COVID-19 will have on assessing an employee’s entitlements to notice and the employer’s commensurate obligations in that regard. The case of Yee v. Hudson’s Bay Company, 2021 ONSC 387, provides one of the first legal pronouncements on the impact of the COVID-19 pandemic on the length of reasonable notice the employee should get prior to being dismissed or the “pay in lieu” an employee will be entitled to if inadequate notice (or no notice) is provided.
According to Justice Dow, “the COVID pandemic and its effect on employment opportunities should not attract the same consideration as termination after the beginning of the COVID pandemic and its negative effect on finding comparable employment.” Citing an earlier decision of the Ontario Court of Appeal, Justice Dow followed the principle that what constitutes reasonable notice of termination should be determined by the circumstances existing at the time when the employee is terminated and not by the length of time it actually takes the employee to find employment.
The Yee v. Hudson’s Bay Company decision is likely to be one of many decisions in a growing body of jurisprudence in relation to the pandemic’s role in employment dismissals. Although the common law is known for making only incremental changes, courts have also been receptive to considering various factors in the assessment of what constitutes a reasonable notice of termination. Thus, as the Canadian economy continues to be impacted by the COVID-19 crisis, it is likely that courts will continue to incorporate the role of COVID-19 as part of their analysis of what constitutes reasonable notice of termination. For now, this recent decision means that if you were terminated before COVID-19 was a meaningful reality, the pandemic will not be a factor in assessing the type of notice you should have received at the time when your employment ended.