By Malcolm J. MacKillop and Hendrik T. Nieuwland
Notice of dismissal Be clear on how long working notice will last, and when the employee's job will end.
W In the recent
e management-side lawyers recognize that
pute, is perceived as being
the weaker party. We have therefore come to expect that, all other things being equal, adjudicators tend to sym- pathize with the dismissed employee. During the recent recession, however, employers were granted a brief reprieve by certain appellate courts, which hand- ed down a number of employer-friendly decisions, such as Honda Canada Inc. v. Keays, which limited employer liabil- ity for Wallace-type damages (Wallace v. United Grain Growers Ltd.), Evans v. Teamsters (Union) (which made it easier to offer temporary re-employment to dismissed employees), and Love v. Acu- ity Investment Management Inc. (which broadly interpreted limitations on a dis- missed employee's share options). All good things come to an end. case Di Tomaso v.
Crown Metal Packaging Canada LP, the Ontario Court of Appeal clarified an important legal principle that, if ignored, can cost your company thou- sands of dollars in a wrongful dismissal lawsuit. In that case, Antonio Di Tomaso
was a 62-year-old machine operator who had provided 33 years of service. The company was shutting down the plant where the plaintiff worked. On Sept. 9, 2009, the company told the plaintiff he would be terminated two months later. As
in a legal dis- the employee
later termination date. The company didn't absolutely finalize the plaintiff 's termination date until Feb. 24, 2010, when it provided him with a letter con- firming his last day of work would be Feb. 26, 2010. Di Tomaso was therefore given almost five months of "working notice" of his dismissal. At trial, Justice Beth A. Allen con-
cluded the reasonable notice period for the plaintiff was 22 months. The pivotal issue became the start date of the notice period. Did the notice period start on Sept. 9, 2009, when the company first told him he would be dismissed? Or did the notice period start on Feb. 24, 2010, when the company finally con- firmed his last day of work? Justice Allen held that the notice
period started on Feb. 24, 2010. The company therefore did not receive any credit for the five months of "working notice" it provided the employee, and was on the hook to pay a further 22 months' salary. Justice Allen came to this conclusion for two reasons. First, Di Tomaso did not receive the required "clear and unequivocal" notice of ter- mination confirming his last day of work until Feb. 24, 2010. Second,
s. it turned out, the
company decided to push the plant closure date back several times. Each time it did, the company sent Di Tom- aso a letter advising him of a new,
6 (1) of the Termination and Sever- ance of Employment regulation, passed under the Employment Standards Act, only allows an employer to continue employment for 13 weeks after a set termination date — if employment continues beyond 13 weeks, new notice of termination must be delivered set- ting out a new termination date. The Ontario Court
of Appeal
affirmed the trial judge's decision. The Court of Appeal also clarified a second important legal principle regarding the
test for reasonable notice, namely that there is no artificial cap on reason- able notice for unskilled workers. For many years, courts tended to award lower notice periods to unskilled work- ers based on a presumption that it is easier for unskilled workers to obtain new employment. In Di Tomaso,
the
Court of Appeal clearly stated that this presumption should not be applied to minimize the notice period of unskilled workers. Di Tomaso is consistent with two
practical tips we have given employ- ers in the past. First, carefully tailor the notice period. Reasonable notice is an art, not a science. There are no legally enforceable "rules of thumb" or artificial "ceilings." Always consider all of the traditional Bardal (Bardal v. The Globe and Mail) factors (age, position, service, prospects of re-employment) when fashioning a notice period for each individual
employee. Second,
be crystal clear when your company decides to provide an employee with working notice. Giving an employee working notice of dismissal is hard at the best of times because the advance notice of termination inevitably causes strain in the employment relationship. Uncertainty surrounding the actual last day of work only increases the strain on the employee and human resources, which, in turn, can negatively affect the morale of co-workers. If you must keep an employee past a given termination date, be certain your company ends the relationship within 13 weeks to gain credit for the working notice already provided. IH
Malcolm J. MacKillop and Hendrik
T. Nieuwland practise employment law with the firm Shields O'Donnell MacKillop LLP of Toronto.
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