Reasonable Notice Jumps From 8 Weeks to 18 Months

Junior-level employees limited to minimum reasonable notice

Until the last few years, reasonable notice for dismissal cases has been disproportionately determined by reference to the character of employment.  This referred to an employee’s hierarchical position within a company or the labour force in general. Reasonable notice between junior and senior levels varied wildly, with entry-level positions scraping the bottom of the barrel.

Traditionally viewed as unskilled and menial, labour jobs and entry-level positions required little or no specialized education. In the event of a termination, it was presumed that alternate employment in these fields could be found quickly and without much effort. Thus, reasonable notice for many of these junior positions had previously been limited to the maximum of eight weeks under the Employment Standards Act or a week or two per year of service.

Courts now look beyond the job title to assess reasonable notice

On the opposite end of the spectrum, reasonable notice for senior positions can reach as high as 24 months or more. With their specialized skills, education and experience, senior employees required more time to find suitable alternative employment. At least, that was the assumption.

BC courts are now acknowledging that these theories may be inaccurate, outdated and unfair. Reasonable notice should not be determined through undue emphasis on the status of an employee or their position in the hierarchy of a company. There is often no evidence proving that “character of employment” directly relates to the time required for an employee to secure alternate employment after a dismissal.

Wrongful dismissal claim breaks new ground

Our case in point involves a 65-year-old truck driver / container lift operator and his employer of 18 years, a Canadian-based logistics company. Originally hired to unload railway cars carrying grain, the employee was promoted to the position of Yard Foreman within three years. This new position included modest supervisory responsibilities and clerical duties. After 10 years as Foreman, his duties were decreased and he was assigned the role of a truck driver. Supervision, training and various supportive duties were included in his newly down-graded position.

The employee was terminated without cause five years later. This occurred one month before he was scheduled to have knee replacement surgery. He was provided only eight weeks' pay in lieu of statutory notice in accordance with the Employment Standards Act. Naturally, he filed a claim for wrongful dismissal.

Current factors in determining reasonable notice

Courts now favour a more rounded approach in determining reasonable notice on a case-by-case basis. This is great news for “lower-level” employees who are typically undervalued in society and the workplace. While “character of employment” is a factor, an employee’s age, length of service, education, training, experience and the availability of similar employment all play important roles.

At the time of his dismissal, the truck driver was 65 years old and he had ongoing health issues. The recovery from surgery and potential subsequent surgeries meant obtaining future employment would be extremely difficult for him. The availability of positions for someone with his supervisory and training experience were non-existent. At the time of his dismissal, he was making over $36 per hour, had extended health and dental plans as well as life and long-term disability insurance coverage. The only positions available to him paid $14 per hour; roughly 60% less than what he was accustomed to earning.

It is for these reasons that the courts awarded the employee 18 months’ notice, an amount that in the past was reserved for senior ranking employees.

If you have questions about reasonable notice or you feel you are a victim of wrongful dismissal, please contact Yeager & Company Employment Lawyers.

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