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Over the past year, employees, employers, and courts have been grappling with whether the COVID-19 pandemic should be a consideration in determining an employee’s notice and entitlements following a termination of employment.  While we have addressed this issue in a previous blog, recent case law indicates that the effects of the pandemic may lead to an increase in notice period awards.

Employee Let Go at Start of Pandemic Entitled to Increased Notice Period

In Kraft v. Firepower Financial Corp., Firepower Financial Corp. terminated Mr. Kraft’s employment in March of 2020, right before a state of emergency was declared in Ontario. Mr. Kraft made efforts to find new employment, applying to over 70 positions. However, he was unable to find a new position for approximately 13 months.

The judge stated that Mr. Kraft was searching for employment during perhaps the most uncertain time of the COVID-19 pandemic and that there was clear evidence that his search extended longer than it would have under normal circumstances.

For this reason, the judge held that Mr. Kraft was entitled to one additional month above the average notice period (for a total of 10 months’ notice).

This case is the first to explicitly indicate a precise increase in the notice period because of the impacts of COVID-19.

Employee Let Go Months Before Pandemic Not Entitled to Additional Notice

Following the Kraft decision, another case, Herreros v. Glencore Canada, declined to provide an increase to the notice period due to the time that Ms. Herreros’ employment was terminated and began seeking new employment. In Ms. Herreros’ case, her employment was terminated on October 30, 2019. The court concluded that October 2019 was well before the COVID-19 pandemic had emerged and therefore did not negatively impact her ability to find new employment.

What does this mean?

The court’s decisions on whether COVID-19 justifies an increase in reasonable notice periods appears to hinge at least in part on when employment was terminated. If employment is terminated closer to March 2020, a judge may be more likely to consider the COVID-19 pandemic’s impact when determining if a higher-than-average notice period is reasonable.

Contact Sultan Lawyers in Toronto for Wrongful Dismissal Claims

At Sultan Lawyers, we are committed to advocating for our employee clients in a manner that maximizes the potential takeaway. Given the current caselaw, there remains room to argue for a longer notice period, in the context of negotiation and litigation, by pointing to the current economic circumstances.

If your employment has been terminated, whether by unjust dismissalwrongful dismissal or otherwise, we strongly urge you to have your termination package reviewed to determine if there may be an opportunity to request or argue for a more favourable exit package. Please contact Toronto employment and immigration lawyersSultan Lawyers, at (416) 214-5111 or via email at khayward@sultanlawyers.com.


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