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Author:
Kelsey Orth

Date:
2020.11.19

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Employment Litigation

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THE EMPLOYERS' EDGE

SHORT-TERM EMPLOYEE’S WRONGFUL DISMISSAL CLAIM FOR YEAR’S WORTH OF REASONABLE NOTICE DENIED

Practice Areas: Employment Litigation

When it comes to termination of employment and wrongful dismissal, the case law in recent years has, to put it mildly, not generally favoured employers.  Whether looking at the numerous decisions dissecting ESA-entitlement termination clauses and finding them wanting, or the seeming upward trend in reasonable notice awards, employers collectively have had few “wins”.  However, a recent decision of the Superior Court gives hope that reason and logic do still underpin legal decision-making, especially in the face of outlandish claims.

In George v. Laurentian Bank Securities Inc. the plaintiff  was hired by Laurentian Bank as Vice President, Equity Trading, then fired 5 months into his job.  His claim for wrongful dismissal was then heard by summary judgement, where his counsel argued that simply by virtue of being a Vice-President he was entitled to at least 12 months’ notice, regardless of the fact that he had worked at Laurentian Bank for fewer than 5 months.

In rejecting the plaintiff’s request for an extended notice period, the Court noted that:

each case is driven by its particular set of facts.  There is no static formula to be applied relative to the length of time the terminated employee was employed.  Rather, the court must consider the Bardal factors within the factual matrix presented which might include, for example, whether an employee had been induced to leave other employment. 

Accordingly, the Court determined that, in the circumstances, the employee was not entitled to such a disproportionate notice period, without even needing to address the contention that senior management/executives are presumptively entitled to such high minimum periods regardless of length of service.  Instead, the Court relied on the facts to find that the plaintiff was neither a senior manager nor executive, and that the normal analysis of the facts of his case yielded a reasonable notice period of 2 months, specifically citing his age (58 years old) as a factor increasing the notice period.  It is also significant to note that neither the fact that the plaintiff was still unemployed after more than a year, nor the fact that the decision was rendered during the COVID-19 Pandemic resulted in any specific “bump” in the notice period.

Although this case may not represent a sea change in the world of wrongful dismissal litigation, it is encouraging to see that not every decision digs a deeper hole for employers.  Rather, this decision demonstrates that proper legal argument and reasoning still applies, which is where the team at CCPartners can help when you are facing a wrongful dismissal claim.

Click HERE to access CCPartners’ “Lawyers for Employers” podcasts on important workplace issues and developments in labour and employment law.

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