Labour &

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        Employment lawyers restricted to wrongful dismissal litigation
          Labour & Employment Lawyers

Toronto

Ontario

Canada

 

 

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Labour and Employment Lawyers in Toronto
Labour & Employment Lawyers

Tel: (416) 590-1900
Fax: (416) 590-1600

info@dumarkowitz.com

17th Floor, Yonge/Eglinton Centre
2300 Yonge Street
Suite 1750
Toronto, Ontario
M4P 1E4


"Work  is one of the most fundamental aspects in a person's life, providing the individual with a means of financial support and, as importantly, a contributory role in society.  A person's employment is an essential component of his or her sense of identity, self-worth and emotional well-being."

-- Chief Justice Dickson, in Reference re: Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 (Supreme Court of Canada),
at page 368.

 

 

Attorney Howard Markowitz delivers radio broadcast on:

Termination pay: What "reasonable notice" package do you deserve?

Every exit is an entrance somewhere else, and in situations of wrongful dismissal your entrance is the "reasonable notice" pay to which wrongfully dismissed workers are entitled well beyond minimal amounts provided by Ontario's Employment Standards Act.  In assessing wrongful dismissal damages, Ontario courts therefore seek to put the employee in the same financial position they would have enjoyed had reasonable notice period been provided.

According to leading case law in Bardal v. Globe & Mail Ltd., [1960] O.W.N. 253 (H.C.), reasonable notice periods are decided with reference to each particular case, having regard to character of the employment, length of employee's service to the company, employee age, and availability of alternative employment given employee's training, qualifications, and training.

And of these Bardal factors, "employment responsibility" and "length of service" are no doubt overriding circumstances considered by Canadian courts today.  According to Chief Justice McEachren in the case of Ansari v. B.C. Hydro & Power Authority, [1986] 4 W.W.R. 123 (S.C.):

... [T]hey are all highly skilled graduate engineers whom B.C. Hydro was satisfied to employ in responsible positions. Those factors alone are sufficient to entitle these employees to a longer notice period than in many other cases. ...

The next important factor in fixing the period of reasonable notice is length of service.  This the only important factor that does bear directly upon the employee's prospects for future employment although long service may add materially to the age of the employee which does bear upon employment possibilities.

For reasons which are largely subjective and which Ontario lawmakers would not presume to disturb, the law requires a longer notice period for a long-term employee even though discharged employees of the same age, skill and responsibility suffering under the same economic factors must be assumed to require an equal period to obtain equivalent employment.  Reasons for this anamoly may be that a long-term employee has a moral claim which has matured into a legal entitlement to a longer notice period.

And so while judges and practitioners have set out similar tests for determining appropriate length of notice, employees should note generally-accepted rule-of-thumb of one-month's pay/benefits/bonuses per year of service for Ontario employees terminated without cause, adjusted upwards for employees older, exercising increased workplace responsibilities, induced from competing employment opportunities at time of hire, and given any unduly stressful/inappropriate method of termination elected by the employer in accordance with Wallace v. United Grain Growers, [1997] 3 S.C.R. 701 and similar decisions.

Accordingly, lawyers expert in the field of employment law will conduct detailed research, library, and database searches to best predict what amount of compensation you might stand to receive from an Ontario judge, and ultimately most persuasive means of convincing your employer just how strong a case they're up against should they be unwilling to negotiate maximum fair severance package out of court.

   

 
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