The long – and short – of reasonable notice

Long-term employees entitled to lengthy notice, even if the business is discontinuing in the short term

By Jeffrey R. Smith

It’s a basic tenet in employment law that employees are entitled to reasonable notice of termination if there is no cause for dismissal.

And while employment standards legislation outlines the minimum amount of notice required, this usually isn’t the extent of notice to which the employee is entitled unless the employee signed a contract limited the notice to a specific amount.

One of the principles of employment law is the employer is in a position of power and advantage over the employee, whether this is always true or not. So it doesn’t really matter what the employer’s circumstances are, the employee is entitled to reasonable notice — or pay in lieu of — according to a variety of factors such as the employee’s age, service time, importance of position, and the likelihood of finding similar work within a reasonable amount of time.

This entitlement doesn’t change if the employer is going out of business or is squeezed for cash, though it may make it difficult for the employee to actually get all notice or pay coming to her.

An Ontario attorney who ran a small practice on his own was having difficulties with his legal secretary, whom he had employed for 26 years. Things had been fine for several years, but the secretary developed some stress and her job performance suffered. Things got worse until she had an outburst in the office, which the attorney felt was out of character and made him concerned for her health.

More troubles followed and the secretary missed some time with an illness. The attorney was himself getting stressed over the employment relationship, but he felt trying to fire her for cause would be even more trouble. He was getting up there in years, so he decided to retire and be done with it. He told the secretary in early September he would be retiring at the end of December.

The secretary blew up at the attorney in the office when he told her, and she later filed for additional notice of dismissal. At this point, the attorney listed all her issues and claimed there was just cause for dismissal so the three months-plus notice she received was plenty. He also said his earnings were modest while he employed the secretary and since he was retiring, he couldn’t afford to pay a lengthy notice award.

A court found the attorney couldn’t assert just cause when he hadn’t given the secretary any warnings and didn’t initially claim just cause. In addition, the secretary’s alleged misconduct didn’t amount to just cause, particularly when her stress leave and illness were factored in.

The court also found the attorney should have been aware of the notice to which the secretary would be entitled and “ability to pay is generally not a factor to be considered in assessing damages for breach of contract.” The secretary was awarded 21 months’ notice for her 26 years' service: see Armstrong v. Lendon, 2015 CarswellOnt 7605 (Ont. S.C.).

This case is a good example that it doesn’t matter how well or how poorly an employer is doing, if it dismisses employees without cause, it still owes those employees their proper entitlement of notice. Even if the employer is retiring and ending the business, a three- or four-month notice of termination just won’t cut it for an employee that has provided a quarter-century of service. Not to mention suddenly claiming there was just cause after the employee demands her full notice entitlement.

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