Employer loses appeal against senior worker's 30-month notice period

A company recently appealed a lower court’s decision to allow a lengthy notice period for one of its former employees, arguing that it was not the period claimed by the worker.

The employer, in this case, terminated the employment of the worker, a professional engineer, in March 2021 due to a company restructuring.

The engineer had been employed by the company and its predecessor since May 1982. Despite attempts to negotiate a termination settlement, the worker pursued legal action, claiming wrongful dismissal.

He subsequently sought summary judgment on his wrongful dismissal claim, with both parties agreeing that summary judgment was an appropriate method for resolving the matter.

The lower court judge presiding over the motion ruled that a 30-month notice period was appropriate given the circumstances and found no evidence to suggest that the worker had failed to make reasonable efforts to mitigate his damages.

Company files appeal

However, the company filed its appeal, arguing that the motion judge made errors by:

• Awarding a notice period exceeding the relief requested in the worker's Statement of Claim
• Incorrectly determining reasonable notice period
• Wrongly concluding that the worker had made reasonable attempts to mitigate his damages.

Regarding the first issue, the worker originally claimed 26 months' notice in his Statement of Claim, but during the summary judgment hearing, he sought damages based on 36 months' notice.

In its decision, the appeal court said the extension of the notice period did not prejudice the employer and so rejected this argument.

As with the second issue, it questioned if the worker's notice period was acceptable to exceed 24 months. The employer emphasised that the worker did not hold a management position.

What were the worker’s exceptional circumstances?

The appeal court noted that the decision to award a 30-month notice period was based on the common law principle that dismissed employees are entitled to reasonable notice, allowing them time to secure alternative employment.

It cited the Supreme Court of Canada and said that no fixed standard exists for what constitutes reasonable notice. Instead, a case-specific analysis considers factors like the nature of employment, employee's tenure, age, and the availability of similar work.

It also said that "exceptional circumstances" warrant a base notice period beyond 24 months for long-term employees in roles similar to the worker in this case.

The motion judge in this case noted that his circumstances were exceptional, considering factors such as his specialized skills, patent contributions, and the limited availability of comparable jobs in his locality.

As for the employer's third issue, the court said the worker had indeed made reasonable efforts to seek employment.

Consequently, the employer's appeal was dismissed, and the court granted him partial indemnity for the appeal costs.