How much notice should you give your employee on termination? A recent decision of the Ontario Superior Court in Herreros v Glencore Canada reiterates that when calculating the period of reasonable notice owed to a wrongfully dismissed employee, it is the circumstances at the time of termination that matter.
The rule comes from a decision of the Ontario Court of Appeal in Holland v Hostopia.com. It states: “Notice is to be determined by the circumstances existing at the time of termination and not by the amount of time that it takes the employee to find employment”. We blogged about the rule here and here in our updates about employment litigation during the pandemic.
In the Herreros decision, the court dealt with a wrongful dismissal dispute between the employer and an employee following the employee’s motion for summary judgment (a faster and cheaper route to resolution than a trial). The court commented on the relevance of the individual circumstances of employees with respect to mitigation, as opposed to the broader surrounding (economic) circumstances that has been the focus of much employment litigation decided during the pandemic as in Yee v Hudson’s Bay Company.
In Herreros, the court made reference to the rule from Holland and added the following clarifying remark: “The purpose of notice is to provide the terminated employee with a reasonable opportunity to find alternative work, but not to guarantee that the employee will in fact find alternative work.” In saying this, the court reiterated that when two employees in the same circumstances are terminated but one takes a longer time to find a job, their reasonable notice period remains the same. The court determines the appropriate notice period for a wrongfully dismissed employee by looking at the following factors:
- Length of service
- Character of employment
- Age of the employee
- Availability of similar employment
As the court stated, reasonable notice is to allow the employee the opportunity to search for alternative employment, not to guarantee the employee their salary and other employment benefits until alternative employment is found.
If you are facing a tough termination decision or have questions about mitigation, get in touch for a consultation.