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If it's not in writing it isn't working notice.

When someone sues for wrongful dismissal the “wrongful” part of it is usually about the working notice or pay in lieu of notice provided. Usually, it is not about whether the employee did something awful justifying a termination without notice.
 
In assessing how much notice an employee should have received of their termination, a judge will look primarily at the employee’s seniority, age and level of responsibility. The courts have been very clear that nobody gets more than 24 months’ notice regardless of these factors.
 
An employer can give working notice: “You are terminated as of three months from now.” It can give pay in lieu of notice: “You are terminated as of today, here is a cheque for three months’ pay in lieu of notice.” It could give a combination of both.
 
Working notice, however,  must be crystal clear. Preferably, it should be in writing. Arguments that the employee ought to have known things were coming to an end almost never succeed.
 
Let’s take the case of a woman we will call Vicky. She worked for a lawyer for 33 years and at the time her employment ended, she was 66 years old.
 
For what Vicky suspected were health reasons, the lawyer she worked for started showing up at the office less and less. He was becoming less effective and billing less. She encouraged him to seek medical care. Eventually, he simply stopped showing up at all and the Law Society stepped in to close down his practice.
 
Vicky sued the lawyer because she had not received any working notice or pay in lieu of notice. In his Statement of Defence, the lawyer argued that Vicky should have known that her job was coming to an end and that the “writing was on the wall”. Given his constant decline she must have known that the end of her employment was imminent. The argument did not succeed. The judge noted that there were lots of cases that showed that even where there was a shutdown of a business for financial reasons, if clear working notice was not provided to the employee, the employer received no credit for having given advance notice. The fact is that absent a letter that clearly sets out a date when the employment will end, courts will rarely find that any advance notice has been provided.
 
Given Vicky’s age and seniority, the court likely would have awarded her 20 months’ notice or perhaps even 22 on a good day. Vicky, however, failed to provide much evidence at all that she had made an effort to look for new employment. As a result, she was awarded 18 months’ pay in lieu of notice and legal costs.
 
I have often been asked whether the circumstances of the employer affect the reasonable notice that will be awarded to an employee. The answer is always no. A 66-year-old non-management employee with 33 years of service is going to be awarded roughly the same notice whether they work for a small business, a non-profit organization or a large corporation. The fact that government funding for a project has been pulled or a large client has left the corporation are irrelevant to the obligations an employer owes to an employee. The employer is expected to be able to plan ahead. They are the ones in charge of the business and the books.
 
If the law did not take this position, trials would go on for days while all the twists and turns of the employer’s circumstance were examined.
 
But what’s good for the goose is also good for the gander. If there is just cause for your termination because you did something heinous you get nothing. If there is not just cause you get reasonable notice. Whether you were an excellent or poor performer matters not.
 
In Vicky’s case, one can have empathy for a sole business owner who, as a result of health issues, has no apparent control over events. But the law in this regard is as it should be. In this case the employee’s interests prevailed.
 
Ed Canning practices labour and employment law with Ross & McBride LLP, in Hamilton, representing both employers and employees. You can email him at ecanning@rossmcbride.com.


This article originally appeared in the Hamilton Spectator on March 9th, 2015.
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com