Employees across Canada are generally entitled to financial protection if they have been dismissed from their employment on a without-cause basis. Upon termination, employees are entitled to reasonable notice (or pay in lieu of notice), which provides dismissed employees with sufficient time (or resources) to find a new and comparable role.
The amount of notice to which an employee is entitled is assessed on a case-by-case basis and depends on the specifics of the individual’s employment. For this reason, determining the appropriate reasonable notice period when the relationship comes to an end can be challenging and may give rise to potential claims of wrongful dismissal.
What is Reasonable Notice?
The term “reasonable notice” refers to the amount of notice, or pay in lieu of notice, that is awarded to an employee following the termination of their employment at common law.
Absent an enforceable termination clause in an employee’s employment contract, an employee will generally be entitled to reasonable notice upon termination.
When determining the reasonable notice period for a dismissed employee, the four (4) primary factors a court will consider in assessing the appropriate amount include the following:
- The length of service;
- The character of employment;
- The employee’s age; and
- The availability of similar employment, given the employee’s experience, training and qualifications.
Impact of Age on Reasonable Notice Period
As discussed, the purpose of the reasonable notice period is to grant sufficient time (or resources) for a dismissed employee to find alternative and comparable employment. Generally, the courts have held that older employees will have increased difficulty in attempting to secure alternate employment in comparison to their younger counterparts. As such, when calculating the reasonable notice period, courts will generally grant an extended reasonable notice period if it can be established that age will present a significant barrier to securing new and comparable employment.
Impact of Age on Wrongful Dismissal
The term wrongful dismissal refers to dismissal without just cause wherein an employer breaches its legislative and/or common law duty to provide reasonable notice of termination, or pay in lieu, to an employee.
If an employer fails to consider the age of the employee that is terminated when determining the appropriate notice period, and the period is deemed insufficient, the employer may be held liable for damages due to wrongful dismissal.
Takeaways for Employees
The courts recognize that age can present as a significant barrier to securing alternate employment.
When calculating the reasonable notice period, the courts will generally grant an extended reasonable notice period if it can be established that age will present a significant barrier to securing new and comparable employment.
Employees may therefore have valid claims for wrongful dismissal if the notice period does not take the employee’s age into consideration when calculating notice.
If you believe you have been wrongfully dismissed and/or are seeking advice in relation to how your age will affect your entitlements upon termination, please contact Toronto employment lawyers, Sultan Lawyers, at 416-214-5111 or here.
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