If you are like thousands of Ontarians who have lost their job during the COVID-19 pandemic, you must be wondering if the pandemic may have an impact on your severance package. Are you entitled to more because you lost your job in the last two years? The answer is nuanced but it may pleasantly surprise you.
In the absence of an enforceable termination clause in the employment agreement and / or a cause for dismissal, employees in Ontario are entitled to a reasonable notice of termination at common law. Simply put, you are not entitled to your job: instead, what you are entitled to is an advanced warning that your job will come to an end on a certain date in the future. If the employer fails to provide you with such a notice, you may seek compensation from the employer equaling to the number of months you should have received had a proper notice been given to you.
At this point, there are probably thousands of court decisions on what constitutes “reasonable notice.” Generally speaking, in the absence of exceptional circumstances, long-term employees can get compensation equaling up to 24 months’ pay! If circumstances are “exceptional” an employee stands to be awarded slightly more.
When deciding how much notice a dismissed employee should be getting, courts will typically look at the employee’s age, length of service, character of employment and the prospect of finding a similar job in the future. The older you are, the longer you’ve been employed, the longer it will take you to obtain suitable alternative employment or so the theory goes.
As a result of the COVID-19 pandemic, courts have released a number of decisions in which COVID-19 became a factor in assessing notice. The case law is developing, however, the trend in the case law seems to be such that if you were dismissed during the COVID-19 pandemic, the court may take your dismissal date into account when determining how long your notice of dismissal should have been. Courts may want to look at evidence specific to your industry to ascertain whether your specific job would be harder to replace and, as such, your notice should be extended. Courts may also take “judicial notice” – i.e. that it is obvious that the pandemic has brought about to lack of employment opportunities and, such an instance, rigorous evidence of COVID-19 on the marketplace may not be a strict requirement.